                                 STATE OF MINNESOTA

                                   IN SUPREME COURT

                                          A15-0251

Dakota County                                                                Anderson, J.
                                                                  Took no part, Chutich, J.

State of Minnesota,

              Respondent,

vs.                                                                     Filed: July 6, 2016
                                                                 Office of Appellate Courts
Shavelle Oscar Chavez-Nelson,

              Appellant.

                                ________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County
Attorney, Hastings, Minnesota, for respondent.

Charles F. Clippert, Saint Paul, Minnesota, for appellant.

                                ________________________

                                      SYLLABUS

       1.     The district court erred when it denied appellant’s request to have advisory

counsel assume full representation of his case, but the error was harmless beyond a

reasonable doubt.

       2.     The district court did not commit errors that, either individually or

cumulatively, deprived appellant of his right to a fair trial.


                                               1
       3.     Appellant was not prejudiced by the district court’s refusal to instruct the

jury on the lesser-included offense of first-degree manslaughter.

       4.     Appellant’s supplemental pro se claims are without merit.

       Affirmed.

                                       OPINION

ANDERSON, Justice

       Following a jury trial, appellant Shavelle Oscar Chavez-Nelson was found guilty

of first-degree premeditated murder and second-degree intentional murder for the

shooting death of Palagor Obang Jobi. The district court convicted Chavez-Nelson of

first-degree premeditated murder and sentenced him to life in prison without the

possibility of release. Chavez-Nelson now appeals his conviction directly to our court.

On appeal, Chavez-Nelson claims, among other arguments, that his Sixth Amendment

right to counsel was violated; that the district court committed errors that, either

individually or taken together, denied him a fair trial; and that the district court erred by

refusing to instruct the jury on the lesser-included offense of first-degree manslaughter.

Because none of Chavez-Nelson’s claims entitles him to relief, we affirm.

                                             I.

       At approximately 11:30 p.m. on September 21, 2013, Jobi went to Nina’s Bar and

Grill in Burnsville with two of his cousins, W.T. and M.T.; a friend, O.C.; and O.C.’s

uncle. Shortly before 1:00 a.m. on September 22, 2013, Chavez-Nelson arrived at Nina’s

with his girlfriend, A.C., and another woman. Chavez-Nelson and the two women

arrived in A.C.’s white Ford Fusion.

                                             2
      Just before 2:00 a.m., Jobi left the bar and stood outside the entrance to smoke a

cigarette. A short time later, Chavez-Nelson and A.C. left Nina’s so that A.C. could

smoke a cigarette. During this time, A.C. stood on the sidewalk near Chavez-Nelson.

      Several minutes later, Jobi told A.C. how beautiful she looked. Chavez-Nelson

overheard the comment, became angry, and approached Jobi. Chavez-Nelson confronted

Jobi and asked Jobi why he was talking to Chavez-Nelson’s girlfriend. Jobi responded

by stating something to the effect of, “If she’s your girlfriend, why is she standing

alone?” W.T. left Nina’s at this time, observed the confrontation, and attempted to

defuse the situation. Chavez-Nelson then walked down the sidewalk and stood with

another group of people approximately 10 feet away.

      After a short time, Chavez-Nelson left the group and walked toward Jobi. A.C.

grabbed Chavez-Nelson by his arm and attempted to stop him from walking away, but

Chavez-Nelson shook her off and continued to walk toward Jobi. Jobi then walked

toward Chavez-Nelson. Chavez-Nelson and Jobi stood “squared up” on the sidewalk and

argued with one another. Jobi then punched Chavez-Nelson in the face. After the punch,

Chavez-Nelson spun away from Jobi and ended up standing on the sidewalk near the

driver’s side headlight of an SUV that was parked in front of Nina’s.

      A witness, R.C., who owned the SUV, was walking toward her car and unlocked it

remotely. When R.C. opened her door, Chavez-Nelson pulled a gun out of his waistband

and started shooting. Chavez-Nelson fired either two or three shots at Jobi, all of which

missed. Jobi then ran along the passenger side and around the back of R.C.’s SUV.



                                            3
       When the shooting started, R.C. got into her car and hid. She testified that she saw

someone run down the passenger side of her SUV. R.C. also testified that her SUV was

shaking and that she assumed there was a struggle on the driver’s side of her vehicle.

R.C. then heard several additional shots and saw Jobi fall to the ground.

       R.C. testified that there was a short pause between volleys as Jobi ran around her

SUV and that there may have been a scuffle on the driver’s side of her SUV in between

the volleys. A.C. testified that there was an initial volley of two to three shots, followed

by a short pause of three to four seconds, and then a second volley of shots. W.T.

testified that once the shooting began, Chavez-Nelson fired between five and six shots,

one after the other.1

       W.T. dove to the ground on the passenger side of the SUV when the shooting

started. After the shooting was over, W.T. ran around the SUV and saw Chavez-Nelson

standing over Jobi, pointing a gun down at Jobi’s body. W.T. tackled Chavez-Nelson and

struggled with him. At some point during the struggle, the gun was fired again, and W.T.

was able to slap the gun out of Chavez-Nelson’s hand and onto the pavement. An

unidentified individual then pulled W.T. off of Chavez-Nelson and told W.T. to let

Chavez-Nelson go. Chavez-Nelson got up, picked up the gun, threatened M.T. and other

bystanders with the gun, and fled the scene in A.C.’s vehicle.

       When the police arrived, Jobi was lying face-down on the driver’s side of R.C.’s

SUV in a pool of his own blood. Jobi was declared dead at the scene. In all, the crime-

1
       Another witness, J.H., testified that at least 15 seconds passed between the two
volleys.

                                             4
scene investigators determined that at least nine shots were fired. One bullet and one

bullet fragment were located on the parking lot pavement directly under Jobi’s head. The

crime scene investigator identified four impact points from the bullets in the asphalt

surface of the parking lot under Jobi’s head.

       Following an autopsy of Jobi’s body, the medical examiner determined that Jobi

had suffered eight gunshot wounds that were the cause of death. The medical examiner

also determined that Jobi had a blood alcohol content of .26. Two of the gunshot

wounds, one to the hip and one to the forehead, were front entry wounds. The medical

examiner found six other entry wounds to the back of Jobi’s body. Four of the back entry

wounds were to Jobi’s head, one was to his back just below his neck, and one was to his

left shoulder.

       Four of the back entry wounds, including three of the wounds to the back of Jobi’s

head, were compatible with a “shored wound.” The medical examiner testified that the

shored wounds were consistent with Jobi’s body being in direct contact with the parking

lot pavement at the time the bullets left his body. The prosecution argued that the

trajectory of the back entry wounds and the fact that several of the back entry wounds

were shored wounds indicated that Chavez-Nelson stood over Jobi’s body when firing the

six shots that produced back entry wounds. The medical examiner testified that the

physical evidence was consistent with such a scenario, but also noted that he could not be

certain that Jobi was on the ground when the back entry wounds were inflicted. The

medical examiner was also unable to specify the chronological order of the gunshot

wounds.

                                                5
       After viewing a photo lineup, both M.T. and R.C. identified Chavez-Nelson as the

shooter.   Further investigation revealed the relationship between A.C. and Chavez-

Nelson. Subsequently, the police began performing surveillance on A.C.’s residence in

Rosemount. During the surveillance, a police officer observed Chavez-Nelson getting

into A.C.’s white Ford Fusion and driving it out of A.C.’s townhome complex. A fully

marked squad car attempted to stop Chavez-Nelson, who initially pulled over, but then

sped away, leading the police on a high-speed chase through a residential area.

       Ultimately, Chavez-Nelson abandoned the vehicle and was apprehended on foot.

A search of the area near where Chavez-Nelson was arrested revealed a 9-millimeter

pistol, a magazine for a pistol, and a baseball cap. The pistol and magazine were

submitted to the Bureau of Criminal Apprehension (BCA) lab for analysis. Testing by

the BCA determined that all nine of the cartridge casings recovered from the scene of

Jobi’s shooting came from the pistol recovered at the scene of Chavez-Nelson’s arrest.

All of the bullets or bullet fragments recovered from the crime scene and autopsy were

either fired by the pistol recovered at Chavez-Nelson’s arrest or were not suitable for

testing.

       The BCA also conducted DNA testing on several items recovered from the crime

scene and the scene of Chavez-Nelson’s arrest. Blood found on the outside of a black

ice-scraper mitten recovered from the crime scene matched Jobi’s DNA profile and did

not match Chavez-Nelson’s or A.C.’s DNA profiles.

       The pistol recovered from the scene of Chavez-Nelson’s arrest was also tested for

DNA. A DNA sample recovered from the grip of the pistol contained a mixture of four

                                            6
or more individuals. Jobi and A.C. were both excluded as contributors, but Chavez-

Nelson could not be. A DNA profile obtained from the trigger was a mixture of three or

more individuals. Jobi and A.C. were excluded as contributors, but Chavez-Nelson could

not be. Finally, a DNA profile obtained from the slide and magazine release was a

mixture of four or more individuals. A.C. was excluded as a contributor, but Chavez-

Nelson and Jobi could not be.

       Chavez-Nelson was initially charged by complaint with second-degree intentional

murder. See Minn. Stat. § 609.19, subd. 1(1) (2014). On October 24, 2013, a grand jury

indicted Chavez-Nelson on charges of first-degree premeditated murder, see Minn. Stat.

§ 609.185(a)(1) (2014), and second-degree intentional murder, see Minn. Stat. § 609.19,

subd. 1(1).   After a jury trial, Chavez-Nelson was found guilty of all counts and

sentenced to life in prison for the first-degree murder conviction. This appeal followed.

       Chavez-Nelson raises a number of claims on appeal. In a brief submitted by his

counsel, Chavez-Nelson argues that he was denied his Sixth Amendment right to counsel;

that the district court made three evidentiary errors that, either individually or

cumulatively, deprived him of a fair trial; and that the district court committed reversible

error by declining to instruct the jury on the lesser-included offense of first-degree heat-

of-passion manslaughter. Chavez-Nelson raises a variety of other claims in a pro se




                                             7
supplemental brief. We address the claims in Chavez-Nelson’s principal brief first,

followed by the claims in his pro se supplemental brief.2

                                            II.

       Chavez-Nelson first claims that the district court deprived him of his right to

counsel under the Sixth Amendment to the United States Constitution when it denied his

request for advisory counsel to assume full representation of his case at trial. After

Chavez-Nelson was arrested, the district court determined that he was indigent and

appointed two attorneys from the public defender’s office to represent him. The public

defenders represented Chavez-Nelson through several pretrial motions, lengthy

discovery, and a continuance that was granted in July 2014.         Chavez-Nelson never

expressed dissatisfaction with the level of experience or the performance of his attorneys

during this time.

       Chavez-Nelson’s trial was scheduled to begin on October 27, 2014. On October

21, six days before trial, Chavez-Nelson informed the district court that he had

discharged his appointed counsel and intended to retain private counsel. At a hearing on

October 23, Chavez-Nelson made an informal request for a continuance so that he would


2
        Chavez-Nelson moved to strike two footnotes in the State’s brief that, he contends,
recite information that is not part of the record. The motion is granted. The record on
appeal consists of the documents, exhibits, and transcript from the district court
proceeding. Minn. R. Civ. App. P. 110.01. The State does not cite to the record to
support the challenged content in the footnotes; nor does it explain why matters from
outside the record are relevant to the issues on appeal. See Thiele v. Stich, 425 N.W.2d
580, 582-83 (Minn. 1988) (stating that “[an] appellate court may not base its decision on
matters outside the record on appeal”); see also State v. Green, 747 N.W.2d 912, 920 n.6
(Minn. 2008) (granting motion to strike portions of State’s brief).

                                            8
have additional time to find and secure private counsel.        The district court denied

Chavez-Nelson’s request for a continuance, noting that the case had already been

continued once.

       Chavez-Nelson told the district court that he had discharged his public defense

team because he disagreed with their decision not to call an expert witness to testify and

because one of them had said that she “hated the way” Chavez-Nelson treated women.

The district court determined that Chavez-Nelson’s reasons for discharging his counsel

did not meet the standard for “exceptional circumstances” contemplated by this court’s

precedent. See State v. Clark, 722 N.W.2d 460, 464-65 (Minn. 2006). Consequently, the

district court informed Chavez-Nelson that it would not appoint new counsel to represent

him and advised him that he could either retain his own attorney or proceed pro se.

       Chavez-Nelson made some efforts to retain a private attorney between October 23

and the first day of trial on October 27, but he was ultimately unsuccessful. Before trial,

the district court repeatedly offered to reappoint Chavez-Nelson’s original public

defenders to represent him. Chavez-Nelson declined these offers and indicated that he

would rather proceed pro se. The district court determined that due to the “complexities

and serious issues” in the case, it would appoint advisory counsel for Chavez-Nelson, as

provided for by Minn. R. Crim. P. 5.04, subd. 2. The district court then appointed two

attorneys who had no prior involvement with Chavez-Nelson’s case to serve as advisory

counsel.

       Jury selection began on October 27 by having the jury fill out a detailed

questionnaire. No jury questioning was conducted on October 27. On the morning of

                                            9
October 28, before the start of voir dire, Chavez-Nelson asked that the district court order

his advisory counsel to assume full representation of his case. The district court denied

this request because it believed Chavez-Nelson was attempting to use the advisory-

counsel mechanism to obtain substitute counsel after the district court had specifically

ruled that he was not entitled to substitute counsel.       Chavez-Nelson responded by

directing the district court’s attention to Minn. R. Crim. P. 5.04, subd. 2(2), which states

that when advisory counsel has been appointed “because of concerns about delays in

completing the trial, the potential disruption by the defendant, or the complexity or length

of the trial,” advisory counsel will assume full representation of the defendant if the

defendant “requests advisory counsel to take over representation during the proceeding.”

Minn. R. Crim. P. 5.04, subd. 2(2)(b).

       The district court indicated that allowing Chavez-Nelson to essentially obtain

substitute counsel at the state’s expense via the advisory-counsel rule would violate this

court’s ruling in Clark and it again denied Chavez-Nelson’s request. But the district

court reiterated that it would be willing to reappoint Chavez-Nelson’s original public

defenders at any time so that they could assume full representation of his case.

       On the morning of October 30, after the first two days of voir dire, Chavez-Nelson

indicated that he would be open to having his original counsel reappointed to represent

him.   The district court re-appointed Chavez-Nelson’s attorneys from the public

defender’s office at the end of jury selection on October 31 and granted a short

continuance to allow the reappointed attorneys an opportunity to prepare for trial.



                                            10
Chavez-Nelson was fully represented by counsel for the remainder of trial, including

during opening statements and the entirety of the trial testimony.

                                            A.

       We review the interpretation and application of the rules of criminal procedure

de novo. State v. Hugger, 640 N.W.2d 619, 621 (Minn. 2002). Chavez-Nelson argues

that the district court erred by denying his request for advisory counsel to assume full

representation of his case. By contrast, the State argues that Chavez-Nelson’s request

was merely an attempt to obtain substitute counsel at the State’s expense. As a result, the

State reasons, the district court correctly characterized Chavez-Nelson’s request as a

motion for substitute counsel, which is subject to review for an abuse of discretion. See

Clark, 722 N.W.2d at 464. Due to the timing of the request and the district court’s

finding that exceptional circumstances were not present, the State argues that the district

court did not abuse its discretion by denying Chavez-Nelson’s request for substitute

counsel.

       But the State’s analysis does not fully address Chavez-Nelson’s argument that

Minn. R. Crim. P. 5.04, subd. 2, was violated. The State’s position appears to be that,

even though Chavez-Nelson made a request under Rule 5.04, subdivision 2, his request

should simply be re-characterized as a request for substitute counsel. We reject the

State’s position.

       The district court made the decision to appoint advisory counsel under Rule 5.04,

subdivision 2(2). Even if Chavez-Nelson’s request under Rule 5.04, subdivision 2(2),

was merely an attempt to circumvent the district court’s prior ruling on the issue of

                                            11
substitute counsel, the district court was not free to disregard the text of the rule. Rule

5.04, subdivision 2(2), clearly requires the district court to inform the defendant that

“advisory counsel will assume full representation of the defendant if the defendant . . .

requests advisory counsel to take over representation during the proceeding.” As a result,

Chavez-Nelson had a rule-based right to request that his advisory counsel take over

representation of his case, and the district court’s denial of that request was an error.3

                                              B.

       Chavez-Nelson argues that the district court’s error deprived him of representation

during a crucial phase of the trial and resulted in a violation of his Sixth Amendment

right to counsel. He claims that this error was structural and necessitates an automatic

reversal. State v. Dorsey, 701 N.W.2d 238, 252-53 (Minn. 2005). The State, on the other

hand, argues that even if there was a violation of Chavez-Nelson’s right under Rule 5.04,

subdivision 2(2), that error did not violate his Sixth Amendment right. As a result, the

State argues, any error committed by the district court is subject to harmless-error

analysis. State v. Kuhlmann, 806 N.W.2d 844, 850-51 (Minn. 2011) (noting that few

errors are structural, and other constitutional errors are reviewed to determine whether

they were harmless beyond a reasonable doubt).



3
       Interestingly, had the district court appointed Chavez-Nelson’s advisory counsel
under Rule 5.04, subdivision 2(1), the district court may have had more discretion in
determining whether Chavez-Nelson’s advisory counsel would assume full representation
of his case. See Minn. R. Crim. P. 5.04, subd. 2(1) (stating that a defendant’s “decisions
about the use of advisory counsel may affect a later request by the defendant to allow the
advisory counsel to assume full representation”).

                                              12
       Even though Chavez-Nelson had the right to have advisory counsel assume full

representation of his case under Rule 5.04, subdivision 2(2), his Sixth Amendment right

to counsel was not violated by the district court’s decision to deny his request. Simply

put, there is no constitutional right to advisory counsel. Clark, 722 N.W.2d at 466.

Further, although a criminal defendant has a right to counsel, indigent criminal

defendants do not have a right to a particular lawyer, only competent representation. Id.

at 464. Generally, a defendant must “accept the attorney appointed by the court.” State

v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993).

       Here, although Chavez-Nelson did not receive the representation he desired—

namely, representation by his advisory counsel—the district court repeatedly offered

Chavez-Nelson the opportunity to accept the services of his original public defenders.

Thus, although Chavez-Nelson was unrepresented during the jury selection process, he

was unrepresented by his choice. Consequently, Chavez-Nelson’s Sixth Amendment

right to counsel was not violated in this case.

       Because the district court’s error was not a violation of Chavez-Nelson’s

constitutional right to counsel, we conclude that the error in this case does not fall into

the “ ‘very limited class of’ [structural] errors . . . that require automatic reversal of a

conviction.” See Kuhlmann, 806 N.W.2d at 851 (quoting Johnson v. United States, 520

U.S. 461, 468 (1997)). Therefore, we apply the harmless-error test to Chavez-Nelson’s

claim. When applying that test, we must determine whether the defendant has shown that

there is a reasonable possibility that the error significantly affected the verdict. State v.

Peltier, 874 N.W.2d 792, 802 (Minn. 2016).

                                             13
       Because Chavez-Nelson argues that the error violated his Sixth-Amendment right

to counsel and was structural error, he does not specify how the error may have

prejudiced him. To the extent Chavez-Nelson maintains that he was prejudiced by the

lack of counsel during the voir dire process, his claim fails. As discussed above, Chavez-

Nelson always had the opportunity to be represented by counsel during all phases of the

trial. Any lack of representation was due entirely to Chavez-Nelson’s refusal to accept

the services of his original public defenders. Cf. Clark, 722 N.W.2d at 464 (stating that

an indigent defendant does not have a right to representation by a particular lawyer).

       Indeed, if anything, it appears that Chavez-Nelson ultimately benefited from any

error because, in the end, he was represented at trial by his original public defenders.

Chavez-Nelson’s original counsel had worked on the case for a full year and had

vigorously litigated every aspect of the case. It is highly unlikely that Chavez-Nelson’s

advisory counsel, appointed on the first day of trial, would have provided better

representation than Chavez-Nelson’s original public-defense team.            Therefore, we

conclude that Chavez-Nelson suffered no prejudice as a result of the district court’s error.

       In summary, Chavez-Nelson had a rule-based right to request that his advisory

counsel assume full representation of his case.          The district court erred when it

disregarded the text of Rule 5.04, subdivision 2(2)(b), and denied Chavez-Nelson’s

request that his advisory counsel assume full representation. But Chavez-Nelson’s Sixth

Amendment right to counsel was not violated, and the court’s error was harmless. As a

result, Chavez-Nelson is not entitled to relief on this claim.



                                             14
                                           III.

       Chavez-Nelson next argues that three other errors committed by the district court,

either individually or taken together, deprived him of a fair trial. We address each

alleged error in turn.

                                           A.

       First, Chavez-Nelson argues that the district court erred when it refused to admit

evidence regarding Jobi’s reputation for violence. Decisions regarding the admissibility

of evidence rest squarely within the discretion of the district court, and we review

evidentiary decisions for an abuse of discretion. State v. Profit, 591 N.W.2d 451, 463

(Minn. 1999). An error regarding an evidentiary ruling is reversible only when it impacts

the defendant’s substantial rights. Minn. R. Evid. 103(a); Minn. R. Crim. P. 31.01. On

appeal, the defendant bears the burden of establishing that the district court abused its

discretion and that the evidentiary ruling prejudiced the defendant’s substantial rights.

State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

       Evidence of a victim’s reputation for violence is admissible in a self-defense case

to establish that the victim was the initial aggressor. State v. Penkaty, 708 N.W.2d 185,

201 (Minn. 2006). When, however, there is no dispute regarding who was the initial

aggressor, the probative value of the evidence is severely diminished and may be

outweighed by the risk of unfair prejudice. State v. Graham, 292 Minn. 308, 313, 195

N.W.2d 442, 445 (1972).

       Chavez-Nelson claimed that either M.T. or W.T. testified in a prior proceeding

that Jobi had a history of getting into fights at bars.     Additionally, Chavez-Nelson

                                           15
believed that O.C. had testified that O.C. went back inside Nina’s in order to avoid any

trouble that Jobi was going to get into because Jobi had a history of getting into trouble at

bars. Chavez-Nelson did not point to any specific prior testimony by M.T., W.T., or O.C.

when arguing that evidence regarding Jobi’s reputation for violence should be admitted.

       After hearing argument from both sides, the district court concluded that the

evidence was inadmissible because any probative value it had would be substantially

outweighed by the risk of unfair prejudice. Once the district court ruled that the evidence

would be inadmissible, Chavez-Nelson’s counsel declined an opportunity to make an

offer of proof or provide additional details regarding the testimony that would have been

provided. The State argues that the district court did not commit an error because the

facts were not in dispute.

       The State is correct: the essential facts about the confrontation and the identity of

the initial aggressor were undisputed. Every witness testified that the two men were

engaged in a verbal confrontation and that Jobi threw the first punch, followed by

Chavez-Nelson escalating the situation by introducing a firearm.           As a result, the

probative value of evidence that Jobi had a reputation for violence was very limited.4

       Chavez-Nelson argues that although the order of physical aggression was

undisputed, it was unclear who started the verbal confrontation. To the extent that is true,


4
       If the defendant is aware of the victim’s reputation for violence, evidence of that
reputation is admissible to show that the defendant’s apprehension of bodily harm was
reasonable. See Penakty, 708 N.W.2d 202. But Jobi and Chavez-Nelson were unknown
to each other and thus the evidence was only admissible to show that Jobi was the initial
aggressor. See id. at 201.

                                             16
the probative value of evidence establishing who started the verbal confrontation as it

relates to Chavez-Nelson’s self-defense argument is limited. Regardless of who started

the verbal confrontation, it is uncontroverted that Jobi started the physical altercation and

that Chavez-Nelson escalated the encounter by introducing a firearm. Although the

reputation evidence may have been relevant for the purpose of establishing who started

the verbal altercation, such evidence would have had limited probative value given the

undisputed evidence that Jobi was the initial physical aggressor. Evidence regarding who

started the verbal confrontation would have added little, factually or legally.

       As a result, the district court determined that there was a high risk of undue

prejudice and that the risk of undue prejudice substantially outweighed any probative

value of the evidence. Given the limited probative value of the evidence, the uncontested

nature of the facts surrounding the physical altercation, and the high risk of unfair

prejudice, the district court did not abuse its discretion by excluding evidence of Jobi’s

reputation for violence.

                                             B.

       Second, Chavez-Nelson argues that the district court improperly admitted

testimony regarding a firearm trace that the Bureau of Alcohol, Tobacco, Firearms &

Explosives conducted on the murder weapon. The prosecutor elicited testimony from

one of the investigating officers regarding the original purchase of the weapon, including

where and when it was purchased. The witness then testified that he was not able to

determine how Chavez-Nelson came to possess the murder weapon.



                                             17
       Chavez-Nelson did not object to the firearm-trace evidence at trial. When the

defendant does not object to the alleged error in the district court, the error is subject to

plain-error review. State v. Pearson, 775 N.W.2d 155, 161 (Minn. 2009). In order to

satisfy the plain-error test, the defendant must show (1) an error, (2) that the error was

plain, and (3) that the error impacted the defendant’s substantial rights.          State v.

Griller, 583 N.W.2d 736, 740 (Minn. 1998). If those three prongs are met, we must

determine whether to address the error to ensure the fairness and integrity of the judicial

process. Id.

       In order to establish that there was an error in this context, Chavez-Nelson must

show that the district court abused its discretion by admitting the evidence. State v.

Mosley, 853 N.W.2d 789, 797 (Minn. 2014). Chavez-Nelson argues that the evidence

was inadmissible because it was irrelevant and suggests that he obtained the firearm

illegally. The evidence at issue was arguably relevant because it helped to establish the

origin of the murder weapon. But Chavez-Nelson is correct that the State was not

required to prove any elements related to the origins of the firearm or whether it was in

the possession of its registered owner at the time of the shooting. Thus, the probative

value of the evidence was low.

       At the same time, however, the evidence was not highly prejudicial. The witness

never testified that Chavez-Nelson obtained the firearm illegally, and the witness made it

clear that he did not know how Chavez-Nelson came to possess the firearm. Given the

marginal relevance of the firearm trace evidence, its admissibility is a close question, but

we cannot say that the district court abused its discretion by admitting it. Additionally,

                                             18
even if the district court did commit an error, it certainly did not rise to the level of a

plain error. See Gulbertson v. State, 843 N.W.2d 240, 247 (Minn. 2014) (“A plain

error is one that is clear or obvious . . . .”). As a result, Chavez-Nelson is not entitled to

relief on his claim regarding the firearm-trace evidence.

                                             C.

       Third, Chavez-Nelson argues that the district court erred when it denied his

motion for a mistrial based on A.C.’s statement that Chavez-Nelson had abused her.

When A.C. was asked whether she was aware that Chavez-Nelson owned a handgun

prior to the night of the murder, she responded, “The first time I had seen his gun was

after he had abused me.” (Emphasis added.) The defense objected, a sidebar was held,

and the district court took a short recess. Upon returning, the district court sustained the

objection, struck the question and answer from the record, and instructed the jury to

disregard the statement.

       This series of events was immediately followed by a lunch recess. During the

jury’s lunch break, the district court heard arguments on Chavez-Nelson’s motion for a

mistrial. The district court characterized A.C.’s statement as an “outburst,” denied the

motion, and offered to read a further curative instruction after the jury returned.

       We review a district court’s decision to deny a mistrial for an abuse of discretion.

State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). “[A] mistrial should not be granted

unless there is a reasonable probability that the outcome of the trial would be different.”

State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006) (quoting Spann, 574 N.W.2d at

53).

                                             19
       In this case, the district court did not abuse its discretion by denying Chavez-

Nelson’s motion for a mistrial for several reasons. First, the statement at issue was an

isolated incident. Chavez-Nelson identifies only one short statement in a lengthy trial

that produced over 1,400 pages of transcript. See State v. Bahtuoh, 840 N.W.2d 804,

819-20 (Minn. 2013) (stating that the district court did not abuse its discretion by denying

a motion for a mistrial based on an isolated incident where the State introduced evidence

that the defendant was present at the scene of another shooting that occurred the same

night as the murder with which he was charged); State v. Mahkuk, 736 N.W.2d 675, 689

(Minn. 2007) (stating that the district court did not abuse its discretion by denying a

motion for a mistrial when the defendant was able to identify only one isolated incident

comprised of two words in a 1,000-page transcript). Additionally, the district court

sustained the objection made by the defendant’s trial counsel and specifically ordered the

jury to disregard the testimony. See Mahkuk, 736 N.W.2d at 689 (stating that the district

court did not abuse its discretion by denying a motion for a mistrial after it sustained the

defense’s objection and gave a curative instruction).

       Further, as the State observes, Chavez-Nelson’s defense team went out of their

way to prepare the jury for the fact that Chavez-Nelson was not a likeable individual.

Chavez-Nelson’s counsel told the jury that Chavez-Nelson was a womanizer and had

committed “really bad acts,” among other things, and that the jury would probably not

like him. Given this background, it is unlikely that such a brief statement would have

swayed the jury and changed the outcome of the trial.



                                            20
         Finally, the State’s overall case against Chavez-Nelson was strong. See Bahtuoh,

840 N.W.2d at 819-20 (considering the strength of the State’s evidence when determining

whether the district court abused its discretion by denying a motion for a mistrial). It was

uncontested that Chavez-Nelson pulled a gun out of his waistband after being struck by

Jobi and that he fired at least nine shots during the course of the confrontation. Chavez-

Nelson did not testify at trial, and he offered no evidence or witnesses refuting the fact

that he shot Jobi. In fact, Chavez-Nelson’s theory of the case was based almost entirely

on self-defense. The medical and forensic evidence, including the impact points below

Jobi’s head, indicated that Jobi was shot in the head multiple times and that he was likely

lying on the ground when some of those shots were fired. When all of these factors are

considered together, it is very unlikely that A.C.’s brief and ambiguous statement

influenced the outcome of the trial. As a result, the district court did not abuse its

discretion when it denied Chavez-Nelson’s motion for a mistrial.

                                            D.

         Finally, Chavez-Nelson argues that all three of these errors, taken together,

deprived him of a fair trial. See State v. Davis, 820 N.W.2d 525, 538-39 (Minn. 2012).

Because we conclude that the district court did not err in any of the instances Chavez-

Nelson directs us to, Chavez-Nelson’s cumulative-error claim fails. None of the district

court’s alleged errors, individually or taken together, deprived Chavez-Nelson of a fair

trial.




                                            21
                                            IV.

       The final argument in Chavez-Nelson’s principal brief is that the district court

erred by refusing his request to instruct the jury on the lesser-included offense of first-

degree heat-of-passion manslaughter. See Minn. Stat. § 609.20(1) (2014). A defendant is

entitled to an instruction on a lesser-included offense when, viewing the evidence in the

light most favorable to the defendant, there is a rational basis to acquit the defendant of

the more severe charge and find the defendant guilty of the lesser-included charge. State

v. Dahlin, 695 N.W.2d 588, 597 (Minn. 2005). We review a district court’s decision not

to provide a lesser-included-offense instruction for an abuse of discretion. Id. But, if the

evidence warrants a lesser-included instruction, the instruction must be given. Id. An

erroneous failure to give a lesser-included instruction is reversible error only when the

defendant is prejudiced by the error. Id.

       Heat-of-passion manslaughter is a lesser-included offense of first-degree

premeditated murder. State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2005). But we

have previously held that a defendant is not prejudiced by a failure to instruct on heat-of-

passion manslaughter when the jury is presented with a charge of first-degree

premeditated murder and a charge of second-degree intentional murder and finds the

defendant guilty of first-degree premeditated murder. Cooper v. State, 745 N.W.2d 188,

194 (Minn. 2008). We reasoned:

       Because the jury had the choice of finding [the defendant] guilty of
       intentional murder without premeditation (i.e., second-degree murder), but
       instead found [the defendant] guilty of intentional murder with
       premeditation, this verdict indicates that the jury would not have found [the


                                            22
       defendant] guilty of first-degree manslaughter, which requires an intent
       triggered by the heat of passion but no premeditation.

Id.

       This case is analogous to Cooper. The jury was presented with charges of first-

degree premeditated murder and second-degree intentional murder. The jury’s decision

to find Chavez-Nelson guilty of first-degree premeditated murder demonstrates that the

jury would not have acquitted Chavez-Nelson of first- and second-degree murder and

instead found him guilty of first-degree manslaughter. Consequently, Chavez-Nelson

was not prejudiced by any error in the district court’s refusal to instruct the jury on the

lesser-included offense of first-degree heat-of-passion manslaughter and is not entitled to

relief based on this claim.

                                             V.

       In addition to the arguments presented through counsel, Chavez-Nelson made a

number of claims in a supplemental pro se brief. Chavez-Nelson argues that (1) the

district court’s instructions to the jury regarding self-defense and premeditation were

incorrect, (2) the district court erred by denying his motion for acquittal, (3) the

prosecutor committed misconduct during closing argument, (4) the prosecutor committed

misconduct by seeking to admit the firearm-trace evidence, (5) the district court erred by

admitting evidence of Chavez-Nelson’s flight from police, (6) errors were committed in

the selection of the jury, (7) his conviction for first-degree premeditated murder is invalid

because the jury foreperson signed the verdict form for the second-degree murder count

before signing the verdict form for the first-degree murder count, and (8) his trial counsel


                                             23
was ineffective.     We have carefully considered each of Chavez-Nelson’s pro se

arguments and, after a thorough review of the record and case law relevant to these

arguments, we conclude that none of Chavez-Nelson’s pro se claims has merit.

                                             VI.

       Ultimately, we conclude that Chavez-Nelson is not entitled to relief based on any

of the claims that he has raised. Chavez-Nelson’s Sixth Amendment right to counsel was

not violated, and any violation of his rule-based right to have advisory counsel assume

full representation of his case was harmless. The district court did not commit errors that,

either individually or taken together, deprived Chavez-Nelson of a fair trial. Chavez-

Nelson was not prejudiced by the district court’s refusal to instruct the jury on the lesser-

included offense of first-degree manslaughter. Finally, Chavez-Nelson’s pro se claims

lack merit.     Therefore, we affirm Chavez-Nelson’s conviction for first-degree

premeditated murder for the shooting death of Palagor Obang Jobi.

       Affirmed.



CHUTICH, J., not having been a member of the court at the time of submission, took no

part in the consideration or decision of this case.




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