State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0007

State of Minnesota,
Respondent,

vs.

Gregg Michael Dickey,
Appellant.

Filed October 16, 2017
Affirmed
Bjorkman, Judge

Douglas County District Court
File No. 21-CR-15-1759

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

Chad Larson, Douglas County Attorney, Alexandria, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his conviction of felo ny fifth-degree assault, arguing that the
district court plainly erred by accepting defense counsel’s stipulation to appellant’s prior

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convictions when he did not personally waive his right to a jury trial on those elements of
the felony offense. In a pro se supplemental brief, appellant challenges the credibility of a
witness, asserts that the prosecuting authority lacked jurisdiction, and contends he was
entitled to additional jail credit. We affirm.
FACTS
On August 2, 2015, appellant Gregg Dickey walke d into a liquor store where N.L.
was shopping. Dickey walked up to N.L., said something to him about a debt, and punched
him in the jaw. Dickey was charged with felony fifth -degree assault, an elevated offense
based on prior domestic violence-related offense convictions. See Minn. Stat. § 609.224,
subd. 4(b) (2014). At Dickey’s jury trial, defense counsel stipulated that Dickey had a
January 2015 felony stalking conviction and a September 2014 gross misdemeanor
domestic-assault conviction. The district court accepted the stipulation and agreed that the
prior-conviction elements would not be presented to the jury but did not question Dickey
about his waiver of a jury determi nation as to those elements. The jury found Dickey
guilty, and the district court, r elying on the stipulation, convicted Dickey of felony fifth -
degree assault. Dickey appeals.
D E C I S I O N
I. Dickey’s substantial rights were not impaired by the district court accepting
his prior-convictions stipulation without a personal jury-trial waiver.

A defendant’s right to a jury trial includes “the right to a jury determination that [he]
is guilty of every element of the crime with which he is charged, beyond a reasonable
doubt.” State v. Kuhlmann , 806 N.W.2d 844, 848 (Minn. 2011) (quotation omitted ). A

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defendant may waive that right and stipulate to an element or elements of the charged
offense to keep potentially prejudicial information from the jury. See id. at 848-49 (citing
State v. Berkelman, 355 N.W.2d 394 (Minn. 1984)). But such a waiver must be personally
given. Id. at 848. When the district court fails to obtain a personal waiver and the
defendant does not object to that omission, we review for plain error. Id. at 852.
To establish pl ain error, an appellant must demonstrate error, that was plain, and
that affected his substantial rights. State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998).
We will only correct plain error if it “seriously affects the fairness and integrity of the
judicial proceedings.” State v. Little, 851 N.W.2d 878, 884 (Minn. 2014).
Dickey argues that the district court’s acceptance of and reliance on the stipulation
without his personal waiver of a jury trial on the prior-conviction elements was error, and
plainly so under Kuhlmann. The state concedes that the district court committed plain
error, and w e agree. Accordingly, o ur principal inquiry is whether the error affected
Dickey’s substantial rights.
An error affects substantial rights if “the error was prejudicial and affected the
outcome of the case.” Id. (quotation omitted). In rejecting Kuhlmann’s argument that the
district court’s failure to obtain his personal jury -trial waiver impaired his substantial
rights, the supreme court noted that Kuhlmann benefited from the stipulation and the lack
of a personal waiver did not affect the outcome of the case . Kuhlmann, 806 N.W.2d at
853. The same factors are present here. First, Dickey received the benefit of the stipulation
to the prior -conviction elements because it kept potentially prejudicial evidence of
Dickey’s prior assaultive conduct away from the jury. See id. Second, as in Kuhlmann,

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there is no indication that the failure to obtain Dickey’s personal jury-trial waiver affected
the outcome of his case. Dickey does not challenge the existence of his prior convictions
or the validity of his stipulations, or dispute that the state could have “readily proven the
conviction-based elements.” See id.
Dickey contends that the district court’s error impaired his substantial rights because
it resulted in him receiving a felony conviction and sentence, rather than “the misdemeanor
authorized by the jury’s verdict. ” This argument mistakes the referenc e point for our
prejudice analysis. The district court could either have elicited a jury -trial waiver from
Dickey before accepting the prior -convictions stipulation or, if he refused to waive that
right, rejected the stipulation and permitted the state to present evidence of the prior
convictions to the jury. Dickey identifies no basis for concluding that either scenario would
have yielded a result other than the felony conviction he now challenges.
On this record, we conclude that the error in accepting Dickey’s stipulation without
his personal waiver of a jury determination on the prior-conviction elements did not impair
his substantial rights.
II. Dickey’s pro se arguments lack merit.
Dickey first urges this court to reverse his conviction because the vic tim is an
unregistered sex offender and not a credible witness. But it is the role of the jury, not
appellate courts, “to determine the credibility of the witnesses and weigh the evidence
before it. ” State v. Harris , 895 N.W.2d 592, 600 (Minn. 2017) . The jury had an
opportunity to hear about N.L.’s criminal history and weigh its relevance to his credibility.

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We defer to the jury’s decision to believe N.L.’s testimony about the incident in question.
See id.
Second, Dickey contends that the Douglas County Attorney lacked “jurisdiction” to
prosecute him because the incident occurred in the City of Alexandria, and the city attorney
should have prosecuted the case. This argument is unavailing because the county attorney
is statutorily required to prosecute felonies that occur within that county. Minn. Stat.
§ 388.051, subd. 1(3) (2016).
Finally, Dickey asserts that he is entitled to a “170 day jail credit.” The district court
sentenced Dickey to 24 months’ imprisonment, with credit for 41 days served on the felony
assault conviction . Dickey does not challenge this calculation. The district court then
addressed Dickey’s probation status with respect to his prior convictions, including a brief
discussion of jail credit for the sentences being executed as a result of the current offense.
Dickey appears to argue that he expected a 170-day jail credit for one of those sentences.
This argument is misplaced. Jail credit for Dickey’s earlier sentences is largely immaterial
because these sentences are concurrent with the longer 24-month sentence. On this record,
we discern no error by the district court in calculating Dickey’s jail credit.
Affirmed.