(concurring in part, dissenting in part).
While I concur with the majority’s determination that the charge and the jury instruction produce a plain and a fundamental error, I respectfully dissent from the majority’s conclusion that State v. Shamp, 422 N.W.2d 736 (Minn.Ct.App.1988), rev’d 427 N.W.2d 228 (Minn.1988) is distinguishable from the instant case.
Initially, it should be noted that the issue addressed by the opinion of this court in this case was not raised before the trial court, nor was it raised or briefed by the parties. The issue of the effect of Minn. Stat. § 609.52, subd. 3(7) was first raised as a result of questioning from the bench at oral argument.
In both Shamp and Anderson, 394 N.W.2d 813 (Minn.Ct.App.1986), this court granted a new trial because of the jury’s consideration of evidence regarding events outside the relevant time period.1 While the supreme court did not review Anderson, this court’s Shamp opinion, which specifically relied on Anderson’s reasoning, was reversed. Thus the continued viability of Anderson is questionable at best. See Shamp, 427 N.W.2d at 230 n. 3. In reversing this court, the Shamp court examined the evidence and concluded that the lack of the limiting instruction was not prejudicial, because there was “no reason*338able likelihood that the jury somehow discredited” testimony regarding events within the permissible time period but believed the testimony regarding the events outside that period. A similar analysis in this case produces an identical result. Shamp, 427 N.W.2d at 231.
Here, I submit that the erroneous charge and jury instruction did not “seriously affect” appellant’s “substantial rights” and therefore were not prejudicial. See Shamp, 427 N.W.2d at 230. State’s exhibit 84 summarizes the dates and amounts of the thefts. Because of the theft amounts and their chronological dispersal as represented on that exhibit, any six month period shows theft of an amount exceeding $2,500. Therefore, the failure to restrict the jury’s consideration to a particular six month period is not prejudicial.
The' grant of a new trial on the basis that the jury might have found certain handwriting identifications not to be credible involves speculation and does not reach the level of “reasonable likelihood” of error discussed in Shamp, 427 N.W.2d at 231. Granting a new trial also casts doubt on the jury’s deliberation process: it requires the inference that the jury, while considering exactly the same testimonial evidence, reached different conclusions regarding the credibility of the handwriting identification for different invoice log entries.
I am unable to distinguish this case from Shamp and would therefore affirm the jury’s determination of guilt.
. The majority distinguishes Shamp from this case based on that case’s lack of an instruction requiring the jury not to consider certain "evidence” chronologically inappropriate while here, the trial court specifically directed the jury to consider such evidence. However, unless specifically instructed otherwise, juries are generally instructed to consider "all the evidence * * * heard and seen in [a] trial * * *.” See Crim.Jig. 3.01. This jury was so instructed. I conclude the lack of a specific limiting instruction and an instruction requiring the jury to consider all the evidence before the court are functionally equivalent, and should not form the basis of distinction between cases. I am also unable to distinguish this case from Shamp on the basis that Shamp involved the waiver of an affirmative defense while this case involved the misdefinition of the offense. The Shamp court addressed the waiver issue but went on to apply the plain error analysis. Thus, Shamp’s conviction was effectively affirmed on two independent grounds. Therefore, I believe that after finding plain error in this case the alternative analysis used in Shamp is fully applicable.