This opinion will be unpublished and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

A04-1678

A04-1680

 

State of Minnesota,

Respondent,

 

vs.

 

Miles Marten Conrad,

Appellant.

 

Filed August 30, 2005

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge

 

Mille Lacs County District Court

File No. K1-03-236

 

Chisago County District Court

File No. K5-03-986

 

 

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134;

 

Janice S. Kolb, Mille Lacs County Attorney, Courthouse Square, 525 2nd Street S.E., Milaca, MN 56353; and,

 

Katherine Johnson, Chisago County Attorney, 313 N. Main Street, Room 373, Center City, MN 55012 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 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

In 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.

FACTS

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 store. 

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 Lacs County 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 appeals.

D E C I S I O N

1.         Chisago County burglary charge 

            Conrad 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 

            Conrad 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 case.”  Id. 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 County charge. 

Affirmed in part, reversed in part, and remanded.