State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0793

State of Minnesota,
Respondent,

vs.

William Joseph Netz,
Appellant.

Filed April 15, 2019
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-17-22332

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Slieter,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that he is entitled to a new trial because the district court failed to
give a limiting instruction to the jury immediately after he testified about his prior
convictions, but did include the limiting instruction in final instructions. We affirm.
FACTS
On September 5, 2017, Officer Wong of the Minneapolis Police Department
responded to a call from a local business owner, and found appellant William Joseph Netz
sitting on the ground with an open bottle of liquor next to him. Officer Wong asked Netz
for his identification so he could issue Netz a citation. Netz began screaming hysterically
at Officer Wong and flailing around on the sidewalk after he was instructed to place his
arms behind his back. Officer Wong attempted to hold Netz down, at which point Netz
turned, looked Officer Wong in the eye, and spit in his face. The spit landed in the corner
of Officer Wong’s mouth. Netz can be heard yelling, “that’s right. I spit right on you, a--
hole” on Officer Wong’s body camera. Netz denied making the statement, but conceded
that it is his voice on the recording. He testified that he was merely trying to get dirt out
of his mouth, and did not intend to spit on the officer.
At the outset of trial, the state moved to impeach Netz with two prior felony
convictions. In response, Netz requested that the district court sanitize the convictions if
they were deemed admissible, but did not request a limiting instruction. The district court
granted the state’s motion and stated, “Of course, if Mr. Netz decides to testify, I will
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instruct the jury both at the time of testimony and in final instruction regarding that
impeachment.”
Netz testified that he has two prior convictions. The district court did not give the
limiting instruction to the jury at that time, and Netz’s attorney continued with direct
examination without requesting the instruction. The district court did give the limiting
instruction during its final instructions to the jury.
The jury found Netz guilt y of fourth-degree assault —intentionally throwing or
transferring bodily fluids at a peace officer. The district court sentenced Netz to a term of
17 months in prison, stayed for three years, with 180 days in jail. This appeal followed.
D E C I S I O N
Netz argues that the district court committed reversible error when it failed to give
the jury a limiting instruction immediately following the admission of impeachment
evidence. Netz’s prior felony convictions —for mail theft and drug possession —were
admissible “[f]or the purpose of attacking the credibility of [Netz as] a witness.” Minn. R.
Evid. 609(a). Rule 609 impeachment evidence is admissible “only for a limited purpose
and the giving of a contemporaneous limiting instruction helps ensure that the evidence
will not be used inappropriately.” State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985); see
also Minn. R. Evid. 105.
A district court errs when it refuses to give a requested1 mid-trial limiting instruction
on the proper use of prior-conviction impeachment testimony. Bissell, 368 N.W.2d at 283.

1 The district court decided that it would give the limiting instruction to the jury following
any prior-conviction impeachment testimony, as well as in its final instructions. It would
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An appellate court “evaluate[s] the erroneous omission of a jury instruction under a
harmless error analysis.” State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004). Reversal is not
warranted when, “beyond a reasonable doubt[ ,] the omission did not have a significant
impact on the verdict.” Id. (quotation omitted).
The state, relying on State v. Taylor, asserts that because Netz never formally
requested the limiting instruction, plain-error analysis should apply. See 869 N.W.2d 1, 17
(Minn. 2015). Taylor, however, is distinguishable, because in that case, the district court
never decided to give the instruction sua sponte, as it did here. Id. at 18.
While the district court failed to give the limiting instruction immediately following
Netz’s testimony regarding his prior felonies, it did give the instruction during its final
instructions to the jury. The only references made during trial to Netz’s prior convictions
were by his attorney2 at the outset of Netz’s direct examination, and by the state during its
closing argument. The state mentioned Netz’s prior convictions in its closing argument in
the permissible context of evaluating his testimony as a witness: “look at the instruction
that the [district] [c]ourt gives you regarding evaluating the testimony of witnesses in this
case. Some of the factors you can consider include impeachment of any witnesses . That

have been impractical for Netz to request an instruction that the district court sua sponte
determined it would provide.
2 Because Netz’s attorney did not pause during his examination to request the limiting
instruction, it is possible that this was trial strategy, and would therefore constitute invited
error. See State v. Goelz, 743 N.W.2d 249, 258 (Minn. 2007) (“The invited error doctrine
prevents a party from asserting an error on appeal that he invited or could have prevented
in the court below. This court has held that a defendant cannot on appeal raise his own
trial strategy as a basis for reversal.” (citations omitted)). Because the failure to give the
mid-trial limiting instruction does not warrant reversal under a harmless-error analysis, we
do not reach whether the failure to object was trial strategy.
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includes their felony convictions, which we heard testimony regarding the defendant’s two
felony convictions.”
Because no improper use was ever made of the testimony regarding Netz’s prior
convictions, and because the district court included the limiting instruction in its final
instructions, Netz was not prejudiced by the district court’s failure to give a mid -trial
limiting instruction. See Bissell, 368 N.W.2d at 283 (concluding that failure to give a mid-
trial limiting instruction “clearly was not prejudicial since the court did give such an
instruction as part of its final instructions to the jury and since no one suggested that the
evidence should be used for any purpose other than determining [appellant’s] credibility as
a witness”).
In addition to the lack of prejudice, the evidence against Netz shows that the verdict
was not attributable to the erroneous omission of the mid-trial limiting instruction. The
only issue in dispute was whether Netz intended to spit on the officer. Netz testified that
he is the person depicted on Officer Wong’s body camera, and that it is his voice captured
on the recording. Netz can be heard yelling, “that’s right, I spit right on you a--hole.”
Therefore, beyond a reasonable doubt, the erroneous omission of the mid-trial limiting
instruction did not impact the verdict.
Affirmed.