                           This opinion will be unpublished and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
                                      A14-1310

                                     State of Minnesota,
                                         Respondent,

                                              vs.

                                   Laura Kirstine Avery,
                                        Appellant.

                                    Filed June 22, 2015
                                         Affirmed
                                     Halbrooks, Judge


                              Hennepin County District Court
                                File No. 27-CR-12-41915

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Stan Keillor, Access Justice, Minneapolis, Minnesota (for appellant)

       Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and

Reilly, Judge.

                         UNPUBLISHED OPINION

HALBROOKS, Judge

       On appeal from her conviction of four counts of malicious punishment of a child,

appellant argues that she did not receive a valid stipulated-facts trial or a valid bench trial
under Dereje v. State and that she did not knowingly and intelligently waive her right to a

jury trial. We affirm.

                                         FACTS

       On December 13, 2012, appellant Laura Kirstine Avery was assigned as a

substitute teacher in a fifth-grade classroom. Her students reported mid-day to school

staff members, and later to police investigators, that at different points throughout the

morning, Avery yelled at, swore at, and physically punished or assaulted fifth graders.

After an investigation, the state charged Avery with gross misdemeanor malicious

punishment of a child with respect to five students, one of whom was later withdrawn as

a victim, and misdemeanor tampering with a witness with respect to a sixth student.

       The parties appeared in district court on July 30, 2013, purportedly for a

stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3. Defense counsel and the

district court made a record of Avery’s waiver of her jury-trial rights, and defense

counsel also submitted her written jury-trial waiver.

       The district court then asked the prosecutor, “[I]t’s my understanding that you’re

going to reduce all of the documents and such to a CD and someone from your office will

drop it off today or tomorrow?” The prosecutor responded that it might take “an extra

day or so” to save everything to a CD. The district court asked if “there is an agreement

between you and [defense counsel] about what’s going to be contained in that package?”

The prosecutor responded that there was an agreement that there would be no foundation

or authenticity objections and noted that defense counsel had asked for extra time to

submit character evidence. In a cover letter to the district court dated that same day, the


                                             2
prosecutor indicated that an amended complaint and the state’s evidentiary submission

were attached and noted that the parties were “almost entirely in agreement about the

facts to be submitted.”

       On September 30, 2013, Avery’s counsel submitted her written closing argument,

attaching evidentiary exhibits. The prosecutor also submitted his closing argument with

attachments that day.1

       On October 8, the district court filed an order extending its time to return a verdict,

noting that neither party objected. On December 23, 2013, the district court found Avery

guilty of four counts of malicious punishment of a child but not guilty of tampering with

a witness. After denying Avery’s motion for a new trial on the ground that it was

untimely, the district court convicted and sentenced Avery on April 2, 2014. On July 30,

2014, Avery filed a notice of appeal with a motion for extension of time to file the notice,

which we granted.

       After Avery filed this appeal, the state’s appellate attorney moved the district court

to supplement the record, attaching (1) a CD containing the state’s exhibits and the July

30 cover letter and (2) the state’s submissions from September 30 (cover letter, closing

argument, proposed exhibit list, proposed findings of fact and conclusions of law, and

amended complaint). The district court granted the motion and sealed the supplemental

record.




1
   Due to confidentiality reasons, the state’s documents were not formally filed with the
district court when they were submitted.

                                              3
                                     DECISION

                                             I.

       Before the district court, both attorneys referred to the bench proceeding as a

stipulated-facts trial. On appeal, the parties agree that under the rule of Dereje v. State,

the bench proceeding did not qualify as a stipulated-facts trial under Minn. R. Crim.

P. 26.01, subd. 3. In Dereje, our supreme court held that “the submission of documentary

evidence presenting contradictory versions of events cannot constitute a valid trial on

stipulated facts under Minn. R. Crim. P. 26.01, subd. 3.” Dereje v. State, 837 N.W.2d

714, 721 (Minn. 2013), cert. denied, 134 S. Ct. 1772 (2014).

       A proper stipulated-facts trial under subdivision 3 requires “agreement between

opposing parties regarding the actual event or circumstance.” Id. at 720. Here, the

documentary evidence contains contradictory versions of events on critical elements.

Because a stipulated-facts trial cannot be based on the submission of documentary

evidence presenting contradictory versions of events, Avery did not receive a valid

stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3.

                                             II.

       When a defendant does not receive a valid stipulated-facts trial, a new trial is not

warranted if (1) the defendant received a valid bench trial under rule 26.01, subdivision 2;

(2) the defendant validly waived her jury-trial rights; and (3) the district court made

“detailed and thorough findings of fact drawn from the stipulated evidence.” Id. at 721.




                                             4
Validity of Court Trial

       The procedure employed here parallels that of Dereje in that the parties submitted

documentary evidence containing contradictory versions of events, and the district court

made findings of fact drawn from the evidence submitted. See id. Avery argues that the

procedure was defective due to the absence of an explicit agreement on the evidence to

be submitted, but neither Minn. R. Crim. P. 26.01, subd. 2, nor the caselaw interpreting it

require parties to stipulate to the body of evidence to be offered in a bench trial. Here,

the district court and counsel discussed the status of the evidentiary submission, and the

district court reminded counsel to cite rules in support of any evidentiary objections. We

conclude that Avery received a valid bench trial under Minn. R. Crim. P. 26.01, subd. 2.

Validity of Jury-Trial Waiver

       Avery’s jury-trial waiver must “be knowing, intelligent and voluntary.” State v.

Ross, 472 N.W.2d 651, 653 (Minn. 1991). Avery concedes that her jury-trial waiver

complied with Minn. R. Crim. P. 26.01, subd. 2, but argues that it was not knowing and

intelligent.2   The heart of Avery’s argument is that the unspecified content of the

evidentiary record at the time of her jury-trial waiver invalidates her waiver.

       Our review of the record shows that at the time of Avery’s jury-trial waiver,

counsel may not have finalized the content of the CD of evidence that was to be provided

to the district court. But the CD was finalized shortly thereafter—nearly two months


2
   To the extent Avery argues that her waiver made in contemplation of a subdivision 3
proceeding is ineffective for a subdivision 2 proceeding, our supreme court implicitly
rejected this argument in Dereje. Compare 837 N.W.2d at 719, 721, with 837 N.W.2d at
725 (Page, J., dissenting).

                                             5
before the parties submitted their closing arguments. At no point did Avery advise the

district court that the content of that record went beyond her expectations and

understanding when she waived her jury-trial rights. And before this court, Avery does

not identify any evidence that was a surprise to her or that would have affected her

decision to waive her jury-trial rights. There is no indication that the record submitted to

the district court contained evidence that had not been properly disclosed by the state or

that it had other procedural defects. To the contrary, the parties agreed that there would

be no foundation or authenticity objections.

       We are not persuaded by Avery’s argument that her waiver could not have been

knowing and intelligent without advance stipulation to the content of the record.

Generally, when a defendant waives her right to a jury trial in favor of a court trial under

subdivision 2, there is no requirement that the parties identify the evidence that will be

offered at trial. In view of the requirements for jury-trial waivers in court trials with live

testimony and arguments, we conclude that Avery’s jury-trial waiver here was valid

despite the possibility that the evidence submitted to the district court was not finalized

until after Avery waived her right to a jury trial.

Findings of Fact

       The third prong of the Dereje analysis examines whether the district court made

“detailed and thorough findings of fact” drawn from the body of evidence to which the

parties had stipulated. Dereje, 837 N.W.2d at 721. “The purpose of written findings is to

aid the appellate court in its review of conviction resulting from a nonjury trial.” State v.

Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990).


                                               6
       Avery concedes that the district court made “lengthy findings of fact referencing

various exhibits” but argues that the findings were nevertheless insufficient, particularly

in light of the procedural irregularities relating to her trial. Having reviewed the findings

and the district court record in its entirety, we conclude that the district court made

detailed and thorough findings of fact drawn from the body of evidence to which the

parties had stipulated.    We therefore conclude that Avery’s bench trial was not

procedurally defective and that a new trial is not warranted.

       Affirmed.




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