This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0416
State of Minnesota, Respondent,
vs.
Faith Annette Jenson, Appellant.
Filed February 29, 2016 Affirmed Reilly, Judge
Ramsey County District Court File No. 62-CR-13-6737
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, G. Tony Atwal, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Cleary, Chief Judge; Chutich, Judge; and Reilly, Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant challenges her conviction of first-degree controlled-substance crime
following a proceeding conducted under Minn. R. Crim. P. 26.01, subd. 4, to obtain review
of a pretrial ruling. She argues that the district court erred by denying her motion to suppress evidence discovered during a warrantless vehicle search and that she was denied
a fair trial during the rule 26.01 proceeding. We affirm.
FACTS
Appellant Faith Annette Jenson was charged with first-degree controlled-substance
crime (sale of methamphetamine) and second-degree controlled-substance crime
(possession of methamphetamine) following a vehicle impoundment and inventory search.
She moved for suppression of the evidence discovered during the search. At the
suppression hearing, Sergeant Kevin Navara of the Ramsey County Sheriff’s Office
testified that the following events occurred.
On June 6, 2013, Sergeant Navara received a tip from a confidential informant that
Jenson was staying at a hotel in White Bear Lake. Sergeant Navara discovered that Jenson
had two outstanding arrest warrants for felony-level controlled-substance crimes. He and
three other officers went to the hotel and saw Jenson carrying things from the hotel to a
vehicle in the hotel parking lot. The officers approached her, informed her that she was
under arrest, and placed her in handcuffs. Because there was not a female officer on the
scene to conduct a pat down, Sergeant Navara asked Jenson whether there was “anything
on her that would [be] of concern to [the officers].” Jenson’s handcuffs were temporarily
removed, and she produced $993 from her bra.
Sergeant Navara then advised Jenson that the vehicle would be towed. He testified
that he decided to have the vehicle towed because “Jenson wouldn’t be returning to the
car,” she “couldn’t prove ownership of the car,” and:
2 The car was not in her name. Her explanation of why she owned the car was she bought it from a guy, didn’t tell me the guy’s name, couldn’t tell me where. There was no bill of sale, no title. She didn’t have a valid license, and I don’t believe we saw any insurance in the car as well.
Sergeant Navara further testified:
I couldn’t establish whose car it was.
....
We had run the car plates, and I believe it came back to us it was a Hispanic gentleman. But based on what she told me, that she bought the car on the side of the road, had no proof, no title, we couldn’t really establish ownership of that car at all.
Sergeant Navara testified that Jenson did not “attempt to make any alternate
arrangements for the vehicle” and that “my guess would be the hotel wouldn’t want [the
vehicle] sitting there for multiple days.” He admitted that hotel employees did not ask that
the vehicle be towed, that Jenson had paid to stay at the hotel until the following day,
June 7, and that Jenson was not asked or given an opportunity to arrange for someone to
pick up the vehicle. Sergeant Navara testified that whether the sheriff’s office has a vehicle
towed “depends on the situation at hand” and that the vehicle would not have been towed
“[i]f [Jenson] could prove ownership, a valid driver name, somebody we knew, family
member, something to that effect that was coming back.”
Sergeant Navara searched the vehicle before it was towed and discovered “ecstasy[,]
. . . marijuana, oxycodone tablets, Percocet,” and “a little over 19 grams of
methamphetamine.” He also discovered a scale, “baggies that were torn apart,” and “some
glass bubbles . . . commonly used for smoking methamphetamine.”
3 Jenson testified at the suppression hearing that she had purchased the vehicle, was
in the process of transferring title to the vehicle, had the title document, and showed that
document to the officers. She also testified that she “asked [the officers] if [she] could
leave [the vehicle] there” and that she was not given an option or opportunity to arrange
for someone to pick up the vehicle.
The district court denied Jenson’s suppression motion. The court determined that
the vehicle impoundment and inventory search were justified because Jenson was taken
into custody and there was no other person available to assume responsibility of the vehicle.
When the parties appeared for trial, defense counsel informed the district court, “It
is my client, Ms. Jenson’s, intent to stipulate to the State’s facts as a Lothenbach stipulation
and to preserve the Rasmussen issue that was previously heard in this matter for appellate
review.” The district court confirmed with Jenson that she wished to waive her right to a
jury trial, “enter a Lothenbach plea,” and “admit that the State ha[s] evidence sufficient to
convict” because “there is an appellate issue that is dispositive in this case.” Jenson agreed
to the district court’s statement that “what is going on here, is you are pleading guilty for
purposes essentially that all of those facts will be established that you will plead guilty to
and then this case will go up on appeal.” Defense counsel then confirmed with Jenson that
she was “not pleading guilty this morning” but was “agreeing to the State’s case and that
we are going to submit that evidence, based on the State’s case, to the judge to determine
whether or not that evidence meets the elements of a first or second degree charge of
violation of the controlled substance law.”
4 The prosecutor submitted the state’s evidence, consisting of Sergeant Navara’s
incident report and a forensic report that identified the controlled substances discovered in
the vehicle. Based on this evidence and the findings of fact contained in the suppression
order, the district court found Jenson guilty of first-degree controlled-substance crime (sale
of methamphetamine). The state then dismissed the charge of second-degree controlled-
substance crime (possession of methamphetamine). Jenson filed this appeal following
sentencing.
DECISION
I.
Jenson argues that the district court erred by denying her suppression motion. When
reviewing a pretrial ruling on a motion to suppress evidence, an appellate court “review[s]
the facts to determine whether, as a matter of law, the [district] court erred when it failed
to suppress the evidence.” State v. Flowers, 734 N.W.2d 239, 247 (Minn. 2007). The
district court’s factual findings are reviewed for clear error, and legal determinations are
reviewed de novo. State v. Diede, 795 N.W.2d 836, 849 (Minn. 2011). A district court’s
ultimate ruling on a constitutional question involving a search or seizure is reviewed de
novo. State v. Anderson, 733 N.W.2d 128, 136 (Minn. 2007).
The United States and Minnesota Constitutions guarantee the right to be secure
against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. “‘[A] search conducted without a warrant issued upon probable cause is per se
unreasonable . . . subject only to a few specifically established and well-delineated
exceptions.’” State v. Johnson, 813 N.W.2d 1, 14 (Minn. 2012) (quoting Schneckloth v.
5 Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973) (quotation omitted)). An
inventory search of a vehicle is one exception to the warrant requirement. State v. Rohde,
852 N.W.2d 260, 263 (Minn. 2014) (quoting Colorado v. Bertine, 479 U.S. 367, 371, 107
S. Ct. 738, 741 (1987)). “[A]n inventory search conducted pursuant to a standard police
procedure prior to lawfully impounding an automobile is not unconstitutional under the
Fourth Amendment.” State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quotation
omitted).
A. Impoundment
“[T]he threshold inquiry when determining the reasonableness of an inventory
search is whether the impoundment of the vehicle was proper.” Id.; see also Rohde, 852
N.W.2d at 264 (stating that “if the impoundment was unreasonable, then the resulting
search was also unreasonable”). “An impoundment is reasonable if the state’s interest in
impounding outweighs the individual’s Fourth Amendment right to be free of unreasonable
searches and seizures.” Rohde, 852 N.W.2d at 264 (quotation omitted). The police have
the authority to impound a vehicle not only if it is “impeding traffic or threatening public
safety and convenience,” but also “to protect the defendant’s property from theft and police
from claims arising therefrom.” Id. at 265 (quotations omitted). Under this caretaking
authority, “the police will generally be able to justify an inventory when it becomes
essential for them to take custody of and responsibility for a vehicle due to the incapacity
6 or absence of the owner, driver, or any responsible passenger.” Gauster, 752 N.W.2d at
505 (quotation omitted).1
“[I]f the defendant assumes responsibility for his property, there is no need for the
police to take on the responsibility to protect it,” but “the need for the police to protect the
vehicle and its contents is often present when police officers arrest a driver.” Id. at 505-06
(concluding that there was no legitimate purpose for impoundment when defendant was
not under arrest, “never relinquished control of his vehicle and had no need to leave it
unattended,” and “was available to take custody of the vehicle and make proper
arrangements”).
[C]ases in which the driver of a vehicle is arrested are fundamentally different from cases in which the driver remains free. When the driver is arrested, it may be necessary to do something with the vehicle; in those cases, the police have a reason to take responsibility for the vehicle. On the other hand, when the driver is not arrested, it is not necessary for the police to take the vehicle into custody in the first place.
Rohde, 852 N.W.2d at 266 (quotations and citations omitted) (concluding that it was
unnecessary for police to impound vehicle when defendant was not under arrest and “was
present and retained control” of vehicle).
1 The state seems to argue that reasonable suspicion that a vehicle contains contraband also justifies an impoundment and inventory search of the vehicle. Caselaw has not recognized reasonable suspicion of contraband as a valid basis to impound and inventory a vehicle. Probable cause that a vehicle contains contraband does justify a search of a vehicle without a warrant. Flowers, 734 N.W.2d at 248. The state did not argue in district court, and has not argued on appeal, that the officers had probable cause to believe that the vehicle contained contraband.
7 In this case, the vehicle was lawfully parked in the hotel parking lot and was not
impeding traffic or threatening public safety or convenience. But Jenson was being taken
into custody on two felony warrants, and the vehicle would be left unattended for an
unknown duration. No arrangement was made for someone to pick up the vehicle for
Jenson. Jenson argues that “[Sergeant] Navara never gave [her] any opportunity to make
arrangements for someone else to drive the vehicle.” But the United States Supreme Court
has held that law enforcement is “not required to offer an arrested driver an opportunity to
make alternative arrangements” before impounding a vehicle. See id. (citing Bertine, 479
U.S. at 373-74, 107 S. Ct. at 742); see also Gauster, 752 N.W.2d at 507-08 (discussing
Bertine’s “reject[ion of] the assertion that the police should have, on their own, offered the
defendant the opportunity to make his own arrangements” for the vehicle). While the
Minnesota Supreme Court has indicated that a defendant should be permitted to make an
arrangement for a vehicle if the defendant “specifically makes a request to do so,” Gauster,
752 N.W.2d at 507-08, the record does not reflect that Jenson asked to make an
arrangement for someone to pick up the vehicle.
Jenson contends that she “assumed responsibility” for the vehicle when she asked
that it be left in the parking lot. However, the supreme court, when analyzing whether
someone assumed responsibility for a vehicle, has focused on whether someone was
present and in control of the vehicle or the vehicle would be left unattended. See, e.g.,
Rohde, 852 N.W.2d at 266 (stating that defendant maintained responsibility for the vehicle
when she was not under arrest and “was present and retained control” of vehicle); Gauster,
752 N.W.2d at 506 (stating that defendant took responsibility for vehicle when he was not
8 under arrest and “never relinquished control of his vehicle and had no need to leave it
unattended”); State v. Robb, 605 N.W.2d 96, 104 (Minn. 2000) (concluding that
impoundment of vehicle would not have been proper where “[defendant]’s friend, a
licensed driver, was at the scene and willing to take responsibility”). Here, Jenson could
not maintain control of the vehicle because she was being taken into custody. There was
no arrangement for someone else to take control of the vehicle, and the vehicle would be
left unattended.
Jenson points out that she had paid to stay at the hotel until June 7, and she contends
that the vehicle should have been left in the hotel parking lot at least through June 7 or until
hotel employees requested that the vehicle be towed. We note that federal circuit courts
have upheld impoundments of vehicles parked not only in public areas, but also in private
parking lots. See, e.g., United States v. Hood, 183 F.3d 744, 746 (8th Cir. 1999) (rejecting
argument that officers could not order tow of vehicle because vehicle was parked in private
lot); United States v. Ramos-Morales, 981 F.2d 625, 626 (1st Cir. 1992) (reviewing federal
caselaw and stating that federal circuit courts “have found that the police may lawfully
impound a vehicle that would otherwise remain on the side of a public highway or city
street or in a private parking lot” (citations omitted)). And the Minnesota Supreme Court
has stated that while “police could lock up [an unattended vehicle] and thus to some extent
protect its contents[, t]his procedure would not necessarily protect the police or the city
from claims” if the vehicle is vandalized or property inside the vehicle is stolen. City of
St. Paul v. Myles, 298 Minn. 298, 300, 218 N.W.2d 697, 698-99 (1974) (concluding that
impoundment of vehicle was reasonable where driver and passengers were under arrest,
9 owner was not present, and vehicle would be left unattended on side of roadway).
Moreover, if a vehicle is left unattended and vulnerable to intrusion initially and is
impounded later, “the city . . . could be subjected to claims that personal property in the
vehicle was stolen while in the city’s custody.” Id. at 303, 218 N.W.2d at 700.
Sergeant Navara testified that his decision to have the vehicle towed was also based
on his inability to establish ownership of the vehicle and Jenson’s suspicious explanation
about how she came to possess the vehicle. In State v. Goodrich, the defendant was
arrested for driving under the influence, the vehicle was not registered to the defendant,
and the vehicle was impounded and searched even though the defendant’s brother and
mother were on the scene and able to take responsibility for the vehicle. 256 N.W.2d 506,
508 (Minn. 1977). The supreme court held that the impoundment and search were
unreasonable because the defendant had arranged for his brother or mother to pick up the
vehicle. The court stated that “[t]he mere fact that the automobile was not registered to
defendant, in the absence of reason to believe that defendant was wrongfully in possession
of it, does not render impoundment reasonable.” Id. at 511. In this case, Sergeant Navara
testified that, not only was Jenson not the vehicle’s registered owner, but she also did not
have a bill of sale for the vehicle and she explained how she came to possess the vehicle
by stating that “she bought it from a guy” who she did not name “on the side of the road.”
These circumstances and the fact that there was no one present who could take
responsibility for the vehicle differentiate this case from Goodrich.
“Impoundment of a motor vehicle must also be conducted pursuant to standardized
criteria.” Gauster, 752 N.W.2d at 503. The district court received into evidence a copy of
10 the sheriff’s office “Vehicle Towing and Release Policy,” which contains a provision on
towing at arrest scenes, providing:
Whenever a person in charge or in control of a vehicle is arrested, it is the policy of this Office to provide reasonable safekeeping by towing the arrestee’s vehicle subject to the exceptions described below. However, a vehicle shall be towed whenever it is needed for the furtherance of an investigation or prosecution of the case, or when the community caretaker doctrine would reasonably suggest that the vehicle should be towed. For example, the vehicle would present a traffic hazard if not removed, or the vehicle is located in a higher-crime area and susceptible to theft or damage if left at the scene.
The following are examples of situations where consideration should be given to leaving a vehicle at the scene in lieu of towing, provided the vehicle can be lawfully parked and left in a reasonably secured and safe condition:
Traffic-related warrant arrest. Situations where the vehicle was not used to further the offense for which the occupant was arrested nor may be subject to forfeiture proceedings. Whenever the vehicle otherwise does not need to be stored and the person in charge of the vehicle requests that it be left at the scene.
Jenson argues that the impoundment contradicted this policy because the vehicle
“was lawfully and securely parked in the hotel parking lot, . . . it was not used to further
the offense for which she was arrested[,] . . . and she requested that the vehicle be left
parked in the secured parking lot.” The policy provides that “[w]henever a person in charge
or in control of a vehicle is arrested, it is the policy of this Office to provide reasonable
safekeeping by towing the arrestee’s vehicle” and then provides “examples of situations”
where officers may decide not to have a vehicle towed. An impoundment policy may
11 permit law enforcement to exercise discretion. See Bertine, 479 U.S. at 375-76, 107 S. Ct.
at 743 (rejecting argument “that [an] inventory search of [a] van was unconstitutional
because departmental regulations gave the police officer discretion to choose between
impounding [the] van and parking and locking it in a public parking place”). Although
Jenson requested that the vehicle be left in the hotel parking lot, she was under arrest, and
Sergeant Navara could not ascertain whether she was rightfully in charge of the vehicle.
Sergeant Navara acted in accordance with the policy by having the vehicle towed for
safekeeping.
Given the circumstances here, we hold that the impoundment was a reasonable
exercise of the caretaking authority to protect the vehicle and its contents and to protect the
sheriff’s department from potential claims. Jenson was under arrest, there was no
arrangement for someone to take control of the vehicle, the vehicle would be left
unattended, and ownership of the vehicle could not be ascertained. The impoundment was
a reasonable seizure under the Fourth Amendment.
B. Inventory search
Following a valid impoundment, law enforcement officers conduct a permissible
inventory search if “they (1) follow standard procedures in carrying out the search and
(2) perform the search, at least in part, for the purpose of obtaining an inventory and not
for the sole purpose of investigation.” State v. Ture, 632 N.W.2d 621, 628 (Minn. 2001);
see also State v. Holmes, 569 N.W.2d 181, 187 (Minn. 1997) (stating that “standard
procedure[s] . . . ensure that the intrusion will be limited in scope to the extent necessary”
to secure and protect vehicles and their contents (quotation omitted)). The sheriff’s office
12 “Vehicle Towing and Release Policy” provides: “All property of value in stored or
impounded vehicles shall be inventoried and listed on the vehicle storage form. This
includes the trunk and any compartments or containers, even if closed and/or locked.”
Sergeant Navara was searching the vehicle to list property of value on an inventory form
when he discovered a suitcase that contained controlled substances and drug paraphernalia.
Jenson argues that the “inventory search had solely an investigative purpose,”
pointing to the facts that she was being arrested on warrants for controlled-substance crimes
and that she had a large amount of cash on her person. But “the police will generally be
able to justify an inventory when it becomes essential for them to take custody of and
responsibility for a vehicle due to the incapacity or absence of the owner, driver, or any
responsible passenger.” Gauster, 752 N.W.2d at 505 (quotation omitted). The district
court credited the state’s evidence that the decision to have the vehicle impounded and
inventoried “was a consequence of the facts that [Jenson] was being taken into custody and
there was no one else available to assume responsibility for the car.” See State v. Klamar,
823 N.W.2d 687, 691 (Minn. App. 2012) (stating that this court defers to a district court’s
credibility determinations when reviewing a pretrial order on a motion to suppress
evidence). And the sheriff’s office policy mandates an inventory when a vehicle is
impounded “for the purpose of protecting an owner’s property, while in the Sheriff’s Office
custody, to provide for the safety of deputies and the public, and to protect the Sheriff’s
Office against fraudulent claims of lost, stolen or damaged property.” The record supports
a conclusion that the inventory search was performed, “at least in part, for the purpose of
13 obtaining an inventory and not for the sole purpose of investigation.” See Ture, 632
N.W.2d at 628.
The inventory search was proper under the circumstances of this case. Because the
impoundment and inventory search of the vehicle fell under an exception to the warrant
requirement and were not unconstitutional, the district court did not err by denying
Jenson’s suppression motion.
II.
Jenson argues that the rule 26.01 proceeding “was error-riddled, failed to comply
with Minn. R. Crim. P. 26.01, subd. 4, and violated her constitutional right to a fair and
impartial trial.” Jenson did not object to the proceeding, and an appellate court generally
will not consider errors that were not objected to in district court. See State v. Myhre, ___
N.W.2d ___, ___, No. A14-0670, slip op. at 8 (Minn. Feb. 17, 2016). But an appellate
court may review an unobjected-to error under plain-error analysis, and the supreme court
recently held “that plain error analysis applies to unobjected-to errors committed under
Rule 26.01, subdivision 4.” Id. at 9, 11. “In order to meet the plain error standard, a
criminal defendant must show that (1) there was an error, (2) the error was plain, and (3) the
error affected the defendant’s substantial rights.” Id. at 9. “If the first three prongs are
satisfied, [the appellate court] must consider a fourth factor, whether [the court] should
address the error to ensure fairness and the integrity of the judicial proceedings.” Id.
(quotation omitted).
14 An error is plain if it is clear or obvious in that “it contravenes case law, a rule, or a
standard of conduct.” State v. Little, 851 N.W.2d 878, 884 (Minn. 2014) (quotation
omitted). Under Minn. R. Crim. P. 26.01, subd. 4:
(a) When the parties agree that the court’s ruling on a specified pretrial issue is dispositive of the case, or that the ruling makes a contested trial unnecessary, the following procedure must be used to preserve the issue for appellate review.
(b) The defendant must maintain the plea of not guilty.
(c) The defendant and the prosecutor must acknowledge that the pretrial issue is dispositive, or that a trial will be unnecessary if the defendant prevails on appeal.
(d) The defendant, after an opportunity to consult with counsel, must waive the right to a jury trial . . . , and must also waive the rights [to testify at trial, have the prosecution witnesses testify in open court in the defendant’s presence, question the prosecution witnesses, and require any favorable witnesses to testify for the defense in court].
(e) The defendant must stipulate to the prosecution’s evidence in a trial to the court, and acknowledge that the court will consider the prosecution’s evidence, and that the court may enter a finding of guilty based on that evidence.
(f) The defendant must also acknowledge that appellate review will be of the pretrial issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial.
(g) The defendant and the prosecutor must make the preceding acknowledgments personally, in writing or on the record.
(h) After consideration of the stipulated evidence, the court must make an appropriate finding, and if that finding is guilty, the court must also make findings of fact on the record or in writing as to each element of the offense(s).
15 See also State v. Knoll, 739 N.W.2d 919, 921-22 (Minn. App. 2007) (citing State v.
Lothenbach, 296 N.W.2d 854 (Minn. 1980)) (stating that rule 26.01, subdivision 4,
provides procedure for what are known as “Lothenbach trials”).
On the day of trial, the parties agreed that the district court’s suppression ruling was
dispositive of the case. Jenson affirmed with defense counsel her understanding that she
was not pleading guilty. She affirmed that she had consulted with defense counsel and
wished to waive her rights to a jury trial, to testify at trial, to cross-examine the state’s
witnesses, and to present defense witnesses. Jenson agreed to the presentation of the state’s
evidence to the district court and acknowledged that the court could convict her based on
that evidence. She acknowledged her understanding that the suppression ruling would be
reviewed on appeal.
The prosecutor submitted Sergeant Navara’s incident report and a forensic report to
the district court. The evidence indicated that Jenson had $993 on her person when she
was arrested and that substances discovered in the vehicle were identified as “1.53 grams
of [m]arijuana, 33 pills of Percocet[,] 2 pills of Oxycontin,” and 19.27 grams of
methamphetamine. The evidence also indicated that a scale, numerous empty baggies,
three cellular phones, and “glass bubble pipes consistent with smoking meth” were
discovered in the vehicle. The district court stated that, based on the incident and forensic
reports and the findings of fact contained in the suppression order, Jenson was guilty of
first-degree controlled-substance crime (sale of methamphetamine).
Jenson argues that the proceeding was “error-riddled” by pointing to misstatements
made by defense counsel and the district court. However those misstatements were
16 corrected on the record. Defense counsel erred by initially informing the district court that
Jenson would “stipulate to the State’s facts.” Defense counsel and the district court later
clarified that Jenson was stipulating to the state’s evidence, and that evidence was
submitted to the court. The district court erred by indicating that Jenson was pleading
guilty. Defense counsel then clarified with Jenson that she was not pleading guilty, and
the district court stated that it found Jenson guilty based on the evidence and facts in the
record. Even if these errors had not been corrected, the supreme court recently explained
that it has “never required strict compliance with the provisions of either Rule 26.01,
subdivision 4, or Lothenbach” and that it has “allowed multiple convictions to stand . . .
despite reliance on flawed attempts to comply with either Rule 26.01, subdivision 4, or the
Lothenbach procedure.” Myhre, slip op. at 6–8 (reviewing cases where convictions were
upheld following Lothenbach trials even though defendants pleaded guilty rather than not
guilty or stipulated to facts rather than to the state’s evidence).
Jenson also argues that the fact that the state dismissed the charge of second-degree
controlled-substance crime (possession of methamphetamine) after the district court found
her guilty of first-degree controlled-substance crime (sale of methamphetamine) indicates
that her “trial . . . was essentially a negotiated guilty plea.” But Jenson could not have been
convicted of both crimes, so it was proper that the lesser crime be dismissed. See Minn.
Stat. § 609.04, subd. 1 (2012) (stating that “[u]pon prosecution for a crime, the actor may
be convicted of either the crime charged or an included offense, but not both” and defining
“included offense” to encompass “[a] lesser degree of the same crime” and “[a] crime
necessarily proved if the crime charged were proved”).
17 The rule 26.01 proceeding followed the procedure under rule 26.01, subdivision 4,
and Jenson has not shown plain error. And even if Jenson could show plain error, she has
not shown that her substantial rights were affected. The district court found her guilty
based on the evidence and facts in the record, and she received appellate review of the
pretrial ruling as intended by the parties. See Myhre, slip op. at 15–16 (stating that
defendant’s substantial rights were not affected by plain error during rule 26.01 proceeding
because district court reviewed stipulated facts and made independent determination of
guilt).
Affirmed.