Cass County District Court File No. K8011382
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and
In a criminal prosecution, a defendant may preserve a right to appeal an adverse pretrial ruling by waiving a jury trial, stipulating to the facts that support a finding of guilt, and submitting the facts to the court under the procedure outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Because a defendant who relies on the Lothenbach procedure essentially concedes factual guilt conditioned on the correctness of the pretrial ruling, the defendant may not challenge the sufficiency of the evidence on appeal from a conviction entered following a Lothenbach stipulation.
The opinion of the court was delivered by: Lansing, Judge
Dane Riley was charged with illegal possession of a firearm and two counts of second-degree assault after drivers reported that their cars had been hit by gun shots on Highway 371, north of Pine River. At a contested omnibus hearing, Riley moved to suppress all evidence, including a rifle, obtained during a stop of the car in which he was a passenger. The district court denied the suppression motion. Riley and the state agreed to submit an amended second-degree assault charge to the court on stipulated facts under the procedure provided in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and the state dismissed the remaining charges. In this appeal from conviction, Riley challenges the correctness of the pretrial ruling and the sufficiency of the evidence to support the second-degree assault conviction.
A deputy sheriff on patrol in the Pine River area about 10:00 p.m. was approached by a truck driver who said that his truck had been shot at while he was driving on Highway 371, just north of Pine River. The driver showed the deputy a bullet hole on the side of the truck.
About ten minutes later, while the deputy and two other law enforcement officers were checking the area north of Pine River, local dispatch received another call from a driver reporting that someone had shot at her car near the intersection of Highway 371 and Black Bear Golf Course Road. The deputy was in that area when he received the report.
As the deputy continued driving, he saw a pickup weaving and nearly leave the road as it rounded a corner. He stopped the pickup and noticed that the driver appeared to be intoxicated. When one of the other officers joined the deputy where he had stopped the pickup, he left the intoxicated driver in his custody and went to look through the ditch area to see if the driver had thrown anything out the window. After he returned to the stopped pickup, a car approached from the direction of the last reported shooting.
Omnibus testimony differs on what happened next. The deputy testified that the car slowed and then stopped approximately five to ten feet from where he was standing. Riley testified that as they approached the police cars, an officer "stepped in the middle of the road waving his flashlight and then walked up to the car and started flashing his light around." The other occupants of the car gave similar testimony.
The testimony was uncontradicted that, when the deputy looked into the car with his flashlight, he saw an uncased rifle on the floor of the back seat. After discovering the rifle, the deputy walked the driver to the squad car and took his statement. The driver confessed to police that he, Dane Riley, and the third person in the car had taken turns using the rifle to shoot at passing cars on Highway 371 because it gave them a "rush."
At the contested omnibus hearing, Riley moved to suppress all evidence obtained from the stop of the car, arguing that the stop was unconstitutional. After the district court denied Riley's motion, Riley and the state agreed that Riley would waive his right to a jury trial and submit the second-degree-assault charge to the district court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The state dismissed the remaining charges. The stipulated evidence included arrest and investigation reports, statements given by Riley and his two companions in the car, the guilty ...