This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Jason M. Brossoit,




Filed May 31, 2005


Toussaint, Chief Judge


Mower County District Court

File No. K7-02-1374



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Patrick Flanagan, Mower County Attorney, Jeremy Lee Clinefelter, Assistant County Attorney, 201 First Street NE, Austin, MN 55912 (for respondent)


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


            Appellant Jason Brossoit challenges his convictions of criminal vehicular operation and reckless driving, arguing that the district court erred in denying his motion to dismiss for lack of probable cause.  Because the evidence is sufficient to support the convictions, we affirm.     


Appellant argues that the district court should have granted his pretrial motion to dismiss for lack of probable cause.  Appellant entered into a Lothenbach stipulation, waiving his right to a jury trial and submitting the two remaining counts for trial by the court on stipulated facts.  See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980).

We need not decide whether a Lothenbach stipulation may properly be used to preserve a pretrial challenge to probable cause.  See State v. Busse, 644 N.W.2d 79, 88 (Minn. 2002) (stating that a Lothenbach agreement is not to be used to raise a sufficiency-of-the-evidence argument on appeal).  Once a defendant has been found guilty beyond a reasonable doubt, a probable-cause challenge becomes irrelevant because the standard of proof beyond a reasonable doubt “is much higher than probable cause.”  State v. Holmberg, 527 N.W.2d 100, 103 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995).   

A person who causes the death of another, great bodily harm to another, or substantial bodily harm to another as a result of operating a motor vehicle in a grossly negligent manner is guilty of criminal vehicular homicide or criminal vehicular operation. Minn. Stat. § 609.21, subds. 1(1), 2(1), 2a(1) (2002).  Gross negligence is defined as “the want of even scant care.”  State v. Iten, 401 N.W.2d 127, 129 (Minn. App. 1987) (quoting State v. Bolsinger, 221 Minn. 154, 158, 21 N.W.2d 480, 485 (1946)).  Further, gross negligence in the context of criminal vehicular operation requires “some egregious driving conduct coupled with other evidence of negligence.”  State v. Miller, 471 N.W.2d 380, 384 (Minn. App. 1991); see, e.g., State v. Tinklenberg, 292 Minn. 271, 273, 194 N.W.2d 590, 591 (1972) (gross negligence found where defendant drove at excessive speed, was inattentive, and lacked control over vehicle).

A person who drives a vehicle with willful or wanton disregard for the safety of persons or property is guilty of reckless driving.  Minn. Stat. § 169.13 subd. 1 (2002).  Additionally, the driver of the vehicle must have known, or should have known that his manner of driving created “an unreasonable risk of harm.”  State v. Bolsinger, 221 Minn. 154, 157, 21 N.W.2d 480, 484 (1946).

Here, appellant (1) was traveling at a rate of speed that made it impossible to yield in time to avoid hitting the victims’ vehicle; (2) completely disregarded a yield sign; (3) was familiar with the intersection, the yield sign, and the limited visibility in approaching the intersection; and (4) had less than the minimum legal tread depth on his rear tires.  There was ample evidence for the district court to conclude beyond a reasonable doubt that appellant was guilty of both criminal vehicular operation and reckless driving.  See generally State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (stating standard of review of sufficiency of the evidence to support a conviction).  Therefore, appellant’s claim of lack of probable cause is without merit.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.