This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Scott G. Kesteloot,


Filed February 3, 2004

Affirmed in part and reversed in part

Stoneburner, Judge


Lyon County District Court

File No. K302448


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


Richard R. Maes, Lyon County Attorney, Tricia Zimmer, Assistant County Attorney, 607 West Main Street, Marshall, MN 56258 (for respondent)


John M. Stuart, Minnesota Public Defender, Sara L. Martin, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant Scott Gregory Kesteloot challenges his convictions of driving while impaired, driving after cancellation, and open-bottle violation, arguing that the district court erred in denying his motion to suppress the evidence obtained from an unlawfully prolonged traffic stop.  Appellant also asserts that he did not validly consent to a Lothenbach trial.  And appellant claims that the district court erred in imposing separate sentences for the open bottle violation and driving while impaired.  Because we conclude that the district court did not err by denying appellant’s motion to suppress and that appellant validly consented to a Lothenbach trial, we affirm the convictions.  Because the district court erred by imposing separate sentences for driving while impaired and the open-bottle violation, we vacate the sentence imposed for the open-bottle violation.



            Shortly after midnight, Balaton Police Officer Smith stopped a car driven by appellant because the red lens on the driver’s-side taillight was broken and showing white light.  As he approached the vehicle, Officer Smith observed “faded and old” red tape on the taillight cover.  Smith explained that he stopped the car because white light was showing from the taillight.  Appellant said that the tape must have come off.  Officer Smith replied that the tape was still in place, but it was old and faded.  Appellant’s passenger, the owner of the car, said she had been looking for a new taillight cover but had not been able to find one.  She later testified that, at the time of the stop, the taillight had been broken for about eight months.

            Officer Smith asked appellant for his driver’s license, and appellant admitted he did not have a license.  While speaking with appellant, the officer noticed an odor of an alcoholic beverage and observed that appellant had bloodshot, watery eyes and that his speech was slurred.  The officer also saw an open can of Miller Lite in a cooler behind the driver’s seat.  Appellant failed field sobriety tests and was arrested for driving while impaired.  Officer Smith checked appellant’s driving record and found that appellant’s license was cancelled as inimical to public safety.  Appellant was charged with driving while impaired, driving after cancellation, and an open-bottle violation.

            Appellant moved to suppress the evidence obtained after the stop, arguing that there was insufficient support for the traffic stop because appellant and his passenger contended that no white light was showing from the rear of the vehicle.  The district court denied appellant’s motion to suppress.  Appellant signed an “Agreement to Proceed by way of Lothenbach Procedure,” which provided that appellant, “having consulted with his attorney, and having been fully informed of his rights to proceed to a Jury trial, together with all the rights afforded at a Jury trial,” waived a jury trial, entered a plea of not guilty, and stipulated to the facts of the case as found in the complaint, police reports, and evidence adduced at the omnibus hearing, for trial by the court.  The district court found appellant guilty of all charges and sentenced him for each offense.  This appeal followed.



            “When reviewing pretrial orders on motions to suppress evidence, [the reviewing court] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  An appellate court reviews the district court’s factual findings under the clearly erroneous standard, but independently reviews the district court’s legal determinations.  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).

            Appellant asserts that once Officer Smith saw that the taillight was covered in red tape, the reason for the stop was no longer valid and that he unlawfully detained appellant by talking to him beyond a brief explanation for the stop and by asking for his driver’s license.  See State v. Hickman, 491 N.W.2d 673, 675 (Minn. App. 1992) (holding that officer’s request for driver’s license after validity of traffic stop has expired is unconstitutional intrusion), review denied (Minn. Dec. 15, 1992). 

            Appellant, however, ignores the factual finding by the district court that the officer observed a vehicle with white light shining “from the driver’s side rear of the car.”  Officer Smith never testified that he was mistaken or that no white light was actually emitting from the taillight, despite his observation of the old and faded tape on the taillight cover.  Minn. Stat. § 169.50, subd. 1(b) (Supp. 2001), provides that “vehicles shall be equipped with at least two tail lamps” exhibiting a red light. The district court’s finding that officer Smith observed a white light through a broken taillight is not clearly erroneous, and the district court did not err by concluding that State v. Hickman does not apply to the facts of this case.

            Appellant contends, for the first time on appeal, that he did not validly consent to a Lothenbach trial because he did not expressly waive the rights listed in Minn. R. Crim. P. 26.01, subd. 3.  See Minn. R. Crim. P. 26.01, subd. 3 (requiring defendant’s acknowledgement and waiver of trial rights before proceeding under the rule).

            Two of the cases relied on by appellant involve the application of Minn. R. Crim. P. 26.01, subd. 1(2)(a):

The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.


See State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002) (reiterating that rule is of constitutional significance and requires strict compliance in order to assure that waiver is voluntarily and intelligently made), review denied (Minn. June 18, 2002); State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986) (applying rule 26.01, subd. 1(2)(a), to Lothenbach trials and requiring strict compliance with requirement of personal waiver made in writing or on the record).  

            But appellant does not argue that his written waiver of a jury trial did not satisfy rule 26.01, subd. 1(2)(a), rather he argues that because each right listed in rule 26.01, subd. 3, was not set out in the waiver he signed, the waiver is insufficient. 

Before proceeding [to trial by court on stipulated facts], the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.  The agreement and waiver shall be in writing or orally on the record . . . .


Minn. R. Crim. P. 26.01, subd. 3. 

            In State v. Halseth, this court held that even though Halseth validly waived his right to a jury trial orally on the record and in writing, he did not validly consent to a trial on stipulated facts under Rule 26.01, subd 3.  653 N.W.2d 782, 787 (Minn. App. 2002).  In Halseth, after the defendant validly waived his right to a jury trial on the record, his attorney stated:

Just formally note the necessary stipulation for the record. We are stipulating to those police reports. I have had a chance to see them. We’ve gone over the file together.  Accordingly, we will stipulate and waive any rights to cross-examination, presentation of evidence, with the understanding with what we have already recited.


Id. at 784 (emphasis in original).  We rejected the state’s argument that, because Halseth was present when his attorney made this statement, he acquiesced and ratified the waivers entered by his counsel.  Id. at 786.  We held that it was imperative that Halseth’s waiver be “personal, explicit, and in accordance with rule 26.01.”  Id.

            There is no authority applying rule 26.01, subd. 3, to Lothenbachproceedings, but it appears to us to be the better practice to require a personal and explicit waiver of all of the rights listed in the rule for both types of trials on stipulated facts.  We note, however, that there is a difference between a Lothenbach trial, which protects a defendant’s right to appeal pretrial issues, and trials to the court under rule 26.01, subd. 3, which preserve all issues for appeal.  See State v. Busse, 644 N.W.2d 79, 88 (Minn. 2003) (Lothenbach procedure is used to submit a case to the district court while “preserving pretrial issues for appeal”); Minn. R. Crim. P. 26.01, subd. 3 (providing that defendant may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court).  Because appellant’s agreement to a Lothenbach trial limited the issue in this case to the district court’s pretrial decision on appellant’s suppression motion, and because appellant validly waived his right to a jury trial under rule 26.01, subd. 1(2)(a), and personally assured the district court that he had been fully advised by counsel of all of his rights associated with trial and waived those rights, we conclude that, although it would have been preferable for the agreement to have listed separately each of the rights listed in Minn. R. Crim. P. 26.01, subd. 3, appellant’s agreement is sufficiently personal, explicit, and in accordance with Minn. R. Crim. P. 26.01 to constitute valid consent to a Lothenbach trial. 

            With regard to sentencing, appellant concedes that Minn. Stat. § 609.035, subd. 2(a), (e)(1) and (e)(6) (Supp. 2001), specifically provide for separate sentences for driving while impaired and driving after cancellation, but argues that the district court erred in imposing a separate sentence for the open-bottle violation.  We agree.  See State v. Tildahl, 540 N.W.2d 514, 514-15 (Minn. 1995) (remanding for district court to vacate one of two sentences imposed for aggravated driving violation and open-bottle violation); City of Moorhead v. Miller, 295 N.W.2d 548, 549-50 (Minn. 1980) (holding that under Minn. Stat. § 609.035, defendant could be sentenced for only one of two offenses, violating open bottle or driving while impaired).  We therefore vacate the sentence imposed for the open-bottle violation.

            Affirmed in part and reversed in part.