This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Jesus Eduardo Lopez,



Filed May 6 2003


Lansing, Judge


Dakota County District Court

File No. K49901450



Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN  55103; and


James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)


Richard J. Coleman, Suite 110, 295 Marie Avenue East, West St. Paul, MN  55118 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Jesus Lopez challenges the sufficiency of the evidence to support his convictions for controlled-substance crimes and argues that the warrant authorizing a search of his house lacked probable cause.  The warrant issue was not decided by the district court and has not been properly preserved for appeal.  Because the deficient record precludes us from deciding the sufficiency-of-the-evidence claim, we remand to allow the court to assemble a complete record, expand the findings, or, if necessary, conduct a new trial.


Jesus Lopez was convicted of third-degree controlled-substance crime and two counts of fifth-degree controlled-substance crime following a stipulated-facts trial to the court.  Police obtained the evidence offered in support of Lopez’s conviction through a search of his house.  The warrant authorizing that search was based on information provided by a confidential reliable informant and on self-confirming information obtained by police through a “controlled buy.”  Although police were unable to determine whether the seller in the controlled buy was Lopez or his brother, they did establish that the car driven by the seller was consistently parked at Lopez’s house during surveillance operations.

            At the omnibus hearing Lopez argued that the district court should dismiss the charges for lack of probable cause.  Lopez also sought a court order requiring police to reveal the identity of the informant.  The district court denied Lopez’s motions.

            The parties indicate in their briefs that, following multiple continuances, they informed the district court that they had agreed to submit the matter for trial on stipulated facts.  The prefatory language in the district court’s order states that the parties agreed “to submit the case for trial on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).”  No documents in the record provide any confirmation of this agreement or any information suggesting what facts were stipulated or the content of any stipulated record.  The file log suggests that counsel for the parties presented their agreement in a meeting with the district court judge held in chambers on the scheduled trial date.  But the file contains no transcript or record of the agreement, nor any indication of whether Lopez was present to acknowledge and waive his trial rights.

The district court convicted Lopez of all three charges.  Following conviction, the prosecution “dismissed” two of the three charges for reasons not stated on the record.  In this appeal, Lopez argues that the evidence was insufficient to convict him and that the warrant authorizing the search of his house was not supported by probable cause.



Lopez first challenges the legality of the search of his house on grounds that the search warrant was not supported by probable cause.  The district court did not rule on the sufficiency of the evidence presented in the warrant application, and this court generally does not consider matters not presented to and considered by the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Lopez contends that his counsel’s statement at the outset of the omnibus hearing that “[t]he issue is probable cause, both as to the warrant and as to the charges” was sufficient to preserve the warrant issue for appeal.  This statement, without more, is insufficient.  Lopez failed to present any arguments on the warrant issue, either at the omnibus hearing or in a post-omnibus memorandum.  Because the warrant issue was not properly presented to or considered by the district court, it is outside the scope of this appeal.


Our review of the remaining issue, sufficiency of the evidence to support the convictions, is precluded by the deficiencies in the record.  First, the record conflicts on whether the district court conducted a stipulated-facts trial in accordance with the procedure outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), or under Minn. R. Crim. P. 26.01, subd. 3.  Although the parties’ briefs and the court’s findings indicate that a Lothenbach procedure was contemplated, both parties maintain that a sufficiency-of-the-evidence challenge can still be maintained.

In Lothenbach, the court approved a procedure in which a defendant could enter a plea of not guilty, waive his right to jury trial, and then stipulate to the prosecutor’s case, as a means of avoiding an unnecessary trial when the defendant does not contest the facts underlying the charges.  Lothenbach, 296 N.W.2d at 857-58.  Thus a Lothenbach procedure is for the purpose of preserving the right to review on suppression issues, not to permit challenges to the sufficiency of the evidence.  Nine years after the Lothenbach decision, a provision allowing for a trial on stipulated facts was added to the Minnesota Rules of Criminal Procedure.  See Minn. R. Crim. P. 26.01, subd. 3.  Although the Lothenbach procedure and the “stipulated facts” trial permitted in rule 26.01 have been viewed by many courts and practitioners as the same procedure, a recent decision of the Minnesota Supreme Court suggests that the procedures differ in their effect on a defendant’s right to challenge the sufficiency of evidence.

In State v. Busse, 644 N.W.2d 79 (Minn. 2002), the supreme court held that an appellant may not challenge the sufficiency of the evidence after a Lothenbach trial on stipulated facts because the Lothenbach procedure is used to submit a case to the district court while “preserving pretrial issues for appeal.”  Busse, 644 N.W.2d at 88.  According to the court, the proper means of challenging the state’s proof of elements of the charge is to “proceed[] to trial and argue[] to a factfinder that the state has not proven all the elements of the charge instead of stipulating to the state’s case.”  Id. at 89. 

The scope of appeal following a stipulated-facts trial under rule 26.01, on the other hand, does not appear to be limited to pretrial issues.  The terms of the rule specify that after a trial on stipulated facts a “defendant may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court.”  Minn. R. Crim. P. 26.01, subd. 3 (emphasis added).  The reach of the rule has not been specifically determined, and the rule’s reference to the Lothenbach procedure in a comment suggests interrelationship between the rule and the case.  See, e.g., Minn. R. Crim. P. 26.01 cmt. (referring to Lothenbach and stating that under the rule a denial of a motion to suppress evidence or other pretrial order may be preserved).  Nonetheless, Busse recognizes a preclusive distinction on sufficiency-of-the-evidence issues in cases submitted under the Lothenbach procedure.  The importance of such a distinction is illustrated in the circumstances of this case in which the state asks us to apply the standards of review and inferences that flow from a conviction when the facts are not specified, developed, or uncontradicted.

Even if we were able to determine that Lopez was tried under rule 26.01 and that he could challenge the sufficiency of the evidence, the record is still insufficient to permit reasoned appellate review.  See, e.g., State v. Rhodes, 627 N.W.2d 74, 89 (Minn. 2001) (remanding because of incomplete record); State v. Perkins, 582 N.W.2d 876, 879 (Minn. 1998) (remanding to reopen omnibus hearing because record incomplete).  The record does not identify the contents of the stipulated record or the individual facts to which the parties apparently stipulated.  In his trial memorandum, Lopez’s counsel informed the district court that “[t]he record of what the court may consider stipulated * * * is of record.”  The state, for its part, informed the district court that “[t]he parties were to submit the verified complaint, the police reports, the testimony from the contested omnibus hearing * * * and certain stipulations.” (Emphasis added.)  Our painstaking review of the district court file has failed to turn up either the “record of what the court may consider” referred to by Lopez or the “certain stipulations” referred to by the state.  The task becomes wholly conjectural when we attempt to address the state’s motion to strike portions of Lopez’s brief for including materials allegedly outside the district court record.[1]  We have no starting point to consider what facts are within or without the record.

Furthermore, the record contains no indication that Lopez agreed to a stipulated-facts trial by personally waiving his right to a jury trial.  A district court must obtain a defendant’s waiver of trial rights before proceeding with a stipulated-facts trial, regardless of whether the court follows the procedure outlined in Lothenbach or conducts the trial under rule 26.01.  See Minn. R. Crim. P. 26.01, subd. 3 (requiring defendant’s acknowledgement and waiver of trial rights before proceeding under the rule); State v. Ulland, 357 N.W.2d 346, 347 (Minn. App. 1984) (construing “strictly” Minn. R. Crim. P. 26.01 to require defendant’s waiver in writing or orally on the record); State v. Sandmoen, 390 N.W.2d 419, 424-25 (Minn. App. 1986) (applying Ulland’sstrict construction of the waiver requirement to a trial on stipulated facts under Lothenbach).  Failure to obtain on the record a defendant’s personal waiver of his right to a jury trial is an independent ground for remand.  State v. Balduc, 514 N.W.2d 607, 611 (Minn. App. 1994).

Because we are unable to determine whether Lopez’s stipulated-facts trial was conducted in accordance with rule 26.01 or with the procedure outlined in Lothenbach, and because the record presented on appeal does not indicate the scope and content of the parties’ stipulations, we are unable to decide Lopez’s challenge to the sufficiency of the evidence.  We recognize that ordinarily a criminal defendant cannot obtain a new trial on appeal by establishing that error occurred unless he provides this court with a complete transcript or an appropriate stipulation of what would be disclosed by a complete transcript.  State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984).  We also recognize that the court made an effort to accommodate counsel who were apparently attempting to coordinate other cases related to this prosecution.  But the state of the record suggests that the problem is more deeply rooted than a failure to transmit available transcripts or documents.  For the reasons stated we remand to the district court to assemble a complete record, expand the findings, or, if necessary, conduct a new trial.


[1] In view of the state of the record, we deny the state’s motion to strike portions of Lopez’s brief as outside the record.