dissenting.
I dissent from the court’s decision that Judge Hodges did not have discretion to remove from the jury’s consideration evidence that McLaughlin had previously been convicted of a felony. McLaughlin fully and unequivocally conceded his prior conviction. The state has never contended that the evidence of McLaughlin’s prior felony conviction was relevant for any purpose other than as proof of an element of the offense which McLaughlin has conceded. Furthermore, Judge Hodges expressly left open reconsideration of admitting the evidence of McLaughlin’s prior conviction if this evidence proved relevant to an issue that became disputed during the trial. Under these circumstances, McLaughlin’s prior felony conviction had no evidentiary relevance.
On the other hand, if the state presents evidence to the jury of McLaughlin’s felony conviction, the risk that the jury would be unfairly prejudiced against McLaughlin is substantial. See Oxereok v. State, 611 P.2d 913 (Alaska 1980). If we look at this issue as strictly an evidentiary matter, it seems clear that Judge Hodges could properly determine that the evidence of McLaughlin’s prior conviction had little probative value and that admission of the evidence had a substantial danger of unfair prejudice to McLaughlin. A.R.E. 403. The majority concedes the evidentiary point. However, the majority is persuaded by the state’s argument that the jury has a right to be informed of all of the elements of the crime charged, so that the jurors will not be misled into thinking that they are being asked to convict McLaughlin for mere possession of a firearm. The state argues that if the jury is left with the inaccurate impression that McLaughlin is being prosecuted for conduct that most jurors will know is permissible, the jury may be tempted to nullify the law by returning a not guilty verdict even though convinced that McLaughlin possessed a concealable firearm.
It is not necessary to allow the state to prove every element of every offense with which a defendant is charged. The majority opinion recognizes this by pointing out that the decision in this case does not apply to offenses such as we discussed in Morgan v. State, 661 P.2d 1102, 1103-04 (Alaska App.1983). Morgan was charged with bootlegging — unlicensed sale of alcohol in a *1279local option area. Morgan had previously-been convicted of this offense. Under the bootlegging statute, Morgan was subject to conviction for a class C felony if the state proved two elements': 1) that Morgan committed the crime of bootlegging, and 2) that he had previously been convicted of this offense.
Assuming that Morgan was willing to concede the existence of the prior conviction, and the prior conviction had no other evidentiary relevance other than to establish the second element of the offense, there seems to be little reason to inform the jury of this prior offense if the defendant is willing to stipulate. Evidence of the prior conviction for the similar offense would have a substantial danger of unfair prejudice to the defendant. It would therefore be proper for the trial judge to determine that the defendant’s trial should focus only on the matter in dispute: whether the defendant committed the crime of bootlegging.
It seems to me that similar analysis applies in the present case. The fact of McLaughlin’s prior conviction is not in dispute. It is therefore irrelevant. Proof of the prior conviction poses a substantial danger of unfair prejudice. The only distinction is the fact that in the felony bootlegging example, bootlegging is a crime and possession of a concealable weapon is not. The state therefore fears jury nullification. However, the Supreme Court of Minnesota and the Supreme Court of California have found the nullification argument to be unpersuasive. State v. Davidson, 351 N.W.2d 8 (Minn.1984); People v. Hall, 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826 (1980).1 In Hall, the court stated:
Instructions can be framed in such a manner that the potentially prejudicial prior conviction is not mentioned to the jury yet the jury can be informed that possession of a concealable firearm is not criminal under all circumstances.
Id., 28 Cal.3d 143, 167 Cal.Rptr. at 850, 616 P.2d at 832 (footnote omitted).2
The trial court can instruct the jury that McLaughlin was charged with possessing a concealable firearm when the law prohibited him from doing so, that he expressly agreed that the law prohibited him from possessing a concealable firearm at the time of the alleged offense, and that the jury is required to accept this agreement without speculating about the reasons that it is unlawful for McLaughlin to possess a concealable firearm. The state seems to contend that such an instruction would not cure the potential prejudice that might arise from the jury not knowing the reason why McLaughlin could not possess a firearm. However, the state has consistently argued in felon-in-possession cases and in other cases where prejudicial material has been presented to a jury, that limiting instructions adequately protect defendants against prejudice arising from proof of a prior conviction. We have frequently accepted the position that the trial judge can determine that a curative instruction will limit the risk of unfair prejudice which results from potentially prejudicial material. See Weitz v. State, 794 P.2d 952, 956 (Alaska App.1990); Roth v. State, 626 P.2d 583 (Alaska App.1981).
Similarly, we should accept the position that we can expect a trial jury to follow a trial court’s instruction, which explains to the jury that the defendant has agreed that he is prevented by law from possessing a concealable firearm and which instructs the jury to focus on the relevant inquiry: whether the defendant possessed a concealable firearm as charged in the indictment. I recognize that this procedure does not eliminate the risk that a jury which is informed of the defendant’s prior conviction *1280may acquit the defendant because it does not understand the nature of his offense. However, there is at least an equal danger that a jury may be unfairly prejudiced against a defendant when it learns he has previously been convicted of a felony. I would allow a trial judge to balance these considerations. It seems to me that allowing the trial judge discretion in this matter would result in fairer trials in felon-in-possession cases.
A procedure which allows a defendant to stipulate that he has previously been convicted of a felony, thus removing this evidence from the jury’s consideration, has significant advantages where the defendant is charged with more than just the felon-in-possession charge. For instance, where the defendant is charged with committing a robbery with a firearm and is also charged with felon-in-possession, the trial court faces a dilemma. See Wortham v. State, 689 P.2d 1133 (Alaska App.1984). If the court is required to allow the state to inform the jury of the defendant’s prior felony conviction on the felon-in-possession charge, the defendant faces the danger of having the jury prejudiced by this evidence. The defendant would have a strong argument that the court must sever the two charges, resulting in two trials. Allowing the defendant to stipulate to the existence of the prior felony conviction, thus removing the evidence of the prior felony conviction from the jury’s consideration, limits this prejudice and could allow the state to proceed against the defendant in one trial.
Jurors are human beings. As human beings, they have passions and prejudices. The law has recognized this, and frequently acts to screen jurors from facts which tend to arouse passion or prejudice, and make it harder for jurors to reach a fair verdict. The law has allowed the trial judge to exercise discretion to weigh the probative value of evidence against the danger that the evidence might arouse unfair passion or prejudice. The law has recognized that limiting the evidence at trial to relevant evidence makes it easier for a jury to render a fair and impartial decision. The law has recognized when a jury learns that a defendant has previously been convicted of a felony offense, the jury may be prejudiced against a defendant. Where the trial judge determines that evidence of a prior felony conviction in a felon-in-possession case does not have any probative value and that there is substantial danger that the evidence of the prior felony conviction may unfairly prejudice the jury, I see no reason to require the judge to allow the state to present this evidence. It seems to me that the solution which Judge Hodges proposed in this situation is sensible. I would accordingly affirm Judge Hodges’ decision.
I therefore DISSENT from the majority’s decision.
. The California Supreme Court’s decision in People v. Hall, was abrogated by a public initiative amending California’s Constitution. See footnote 13, page-of majority opinion.
. The court in Hall went on to suggest an appropriate instruction. Hall, 28 Cal.3d 143, 167 Cal. Rptr. at 850 n. 7, 616 P.2d at 832 n. 7.