This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).




A06-1777, A06-1984



State of Minnesota,





Larry A. Nelson,




Filed December 24, 2007

Reversed and remanded

Lansing, Judge



Olmsted District Court

File No. K1-04-3914



Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Mark A. Ostrem, Olmsted County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)


John Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


††††††††††† Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D†† O P I N I O N


In these consolidated appeals from a conviction of nonsupport of a child and from an order revoking the stayed sentence, Larry Nelson challenges the adequacy of his waiver of trial rights.† Because Nelson did not waive the rights described in Minn. R. Crim. P. 26.01, subd. 3 (2005), before the case was submitted to the court under the procedure provided in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), his waiver was insufficient.† We therefore reverse and remand.


††††††††††† Larry Nelson was charged with felony nonsupport for failure to pay court-ordered child support for his two children. †See Minn. Stat. ß 609.375, subd. 2a (2002) (defining offense of felony nonsupport of child). †The charges followed a civil-contempt order and were based on arrearages that exceeded $50,000.† Nelson did not dispute that he had made no voluntary payments during the time period alleged in the complaint.†

††††††††††† At the pretrial conference, Nelson provided notice of intent to introduce evidence that he had provided care in the form of food and activities when the children were in his custody.† The state disputed the relevance of this evidence and moved to exclude its admission.† After extensive argument from counsel, the district court granted the stateís motion to exclude the evidence.†

††††††††††† To preserve his right to appeal the district courtís exclusionary ruling, Nelson proposed to submit the case to the court for adjudication on stipulated facts under the procedure provided in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).† The state agreed, and the district court conducted an inquiry on Nelsonís waiver of his trial rights.† Nelson personally acknowledged his waiver of the right to a jury trial, but he was not asked and made no statements about whether he was waiving his specific rights to testify at trial, to cross-examine witnesses, or to subpoena witnesses to testify on his behalf.†

††††††††††† On the facts as stipulated, the district court found Nelson guilty of felony nonsupport of a child and sentenced him to a stayed thirteen-month prison term.† The district court stayed the sentence on specific conditions including one year in jail and compliance with his child-support obligations.† Three months later, the district court found that Nelson intentionally violated the conditions of the stay and executed his sentence. †

††††††††††† Nelson appeals his conviction for felony nonsupport and the order issued during the appeal period that revoked his stayed sentence.† For purposes of our consideration, the appeals have been consolidated. ††


The state and federal constitutions provide criminal defendants with the right to a jury trial, to testify at trial, to cross-examine witnesses, and to subpoena favorable witnesses.† U.S. Const. amend. VI; Minn. Const. art. I, ß 6.† When a defendant waives a jury trial or agrees to a trial on stipulated facts, the Minnesota Rules of Criminal Procedure require that the defendant expressly waive these rights.† Minn. R. Crim. P. 26.01, subds. 1, 3 (2005).† If the district court does not strictly comply with this requirement, the subsequent conviction must be reversed.† State v. Halseth, 653 N.W.2d 782, 785-87 (Minn. App. 2002) (granting new trial when defendant failed to provide valid waiver of rights before trial on stipulated facts).†

The state acknowledges that Nelsonís waiver did not conform to the procedures in Minn. R. Crim. P. 26.01, subd. 3, but asserts that the rule does not apply to proceedings under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). †See State v. Knoll, 739 N.W.2d 919, 921 (Minn. App. 2007) (explaining difference between Lothenbach trial and standard stipulated-facts trial). †The specific issue of whether the mandatory waiver provisions listed in Minn. R. Crim. P. 26.01, subd. 3, apply to Lothenbach proceedings was raised in State v. Knoll, which was decided after the parties submitted briefs in this case.† Id. at 920.†

In Knoll, we determined that a defendant who agrees to a Lothenbach trial must expressly waive the rights to a jury trial, to testify at trial, to have the prosecution witnesses testify in open court in the defendantís presence, to question these prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.† Id. at 919, 921-22.† Because Knoll governs this case and because the state concedes that Nelson did not waive each of these rights, we reverse and remand Nelsonís conviction and the order revoking his stayed sentence.†

Reversed and remanded.