This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Miles Marten Conrad,
Filed August 30, 2005
Affirmed in part, reversed in part, and remanded
Gordon W. Shumaker, Judge
Mille Lacs County
File No. K1-03-236
File No. K5-03-986
Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer
Tower, 445 Minnesota Street, St. Paul, MN 55101-2134;
Kolb, Mille Lacs County
Attorney, Courthouse Square,
525 2nd Street S.E., Milaca, MN 56353; and,
Johnson, Chisago County Attorney, 313 N. Main Street, Room 373, Center City, MN
55012 (for respondent)
Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, 2221 University Avenue S.E., Suite 425,
55414 (for appellant)
Considered and decided by Shumaker,
Presiding Judge; Willis, Judge; and Forsberg, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
this consolidated appeal from convictions of third-degree burglary in Chisago
and Mille Lacs counties, appellant argues that his conviction on the Chisago County charge must be vacated because he
did not personally waive his right to a jury trial. Appellant further argues that there was
insufficient evidence to support either of his convictions. Because appellant did not personally waive
his right to a jury trial, we reverse and remand his conviction on the Chisago County charge. But because appellant may not challenge the
sufficiency of the evidence following a Lothenbach
trial on stipulated facts, we affirm the conviction on the Mille Lacs County charge.
On September 4, 2002, two men
entered the County Line Liquor Store in Chisago County. While the first man (later identified as
Randy Surratt) distracted the store clerk, appellant Miles Conrad entered a
back storage room that led to an office.
There was a handmade sign attached to the door of the storage area
stating “Employees Only.” Conrad was not
an employee. The men left the store
without making a purchase. Later, the
store clerk noticed that $160 was missing from a drawer in the store
office. Surveillance videotape from the
store showed Conrad leaving the storage area and stuffing something into his
pants. After contacting the police, the
store clerk identified both Surratt and Conrad as the men who had been in the
On September 28, 2002, two men
entered the Princeton Liquor Store in Mille Lacs County.
Again, one distracted the store clerk and the other entered the store
office and took money out of the safe.
The door to the office had a sign attached, reading “Notice, Authorized
Personnel Only,” and the manager informed the police that the public was not
permitted to enter the office area. Surveillance
tapes showed Surratt speaking to the clerk and Conrad entering the office and
taking money from the safe. Conrad was not
authorized to enter the office.
Conrad was charged with burglary in both
Chisago and Mille Lacs counties. On
January 20, 2004, there was a court trial on stipulated facts as to the Chisago County charge. On April 19, 2004, there was a court trial on
stipulated facts as to the Mille
charge. Conrad was found guilty of both
charges. Conrad filed a notice of
appeal, and this court later granted Conrad’s motion to consolidate the
D E C I S I O N
1. Chisago County burglary charge
argues that he did not personally waive his right to a jury trial on the record
when he agreed to a Lothenbach
proceeding for the Chisago
County charge. Conrad emphasizes that because there is no
written record of a waiver of his rights, including his right to testify on his
own behalf, he is entitled to a new trial.
Caselaw is clear that the defendant must personally waive his right to a jury trial. Minn. R. Crim. P. 26.01, subd. 1(2)(a); State v. Tlapa, 642 N.W.2d 72, 74-75 (Minn. App. 2002). That did not happen here. Therefore, we reverse Conrad’s conviction and
remand to the district court for a trial or other proceedings to which the
parties and court agree.
2. Waiver of insufficient-evidence claim
argues that there was insufficient evidence to support his convictions of
third-degree burglary. Specifically,
Conrad asserts that respondent failed to prove an essential element of third-degree
burglary, namely, that he entered a building without consent.
In State v. Busse, the Minnesota 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 “reserving
pretrial issues for appeal.” 644 N.W.2d
79, 88 (Minn.
2002) (quotation omitted). Accordingly,
an appellant may properly challenge the state’s proof of elements of the charge
only by “proceed[ing] to trial and argu[ing] to a factfinder that the state had
not proven all the elements of the charge instead of stipulating to the state’s
at 89 (footnote omitted). In this case,
both convictions were the product of Lothenbach
proceedings on stipulated facts. Therefore,
Conrad has waived this claim, and we affirm his conviction on the Mille Lacs
in part, reversed in part, and remanded.