State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1704

State of Minnesota,
Respondent,

vs.

Davon Allen,
Appellant.

Filed September 4, 2018
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-16-20317

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Johnson,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his first -degree criminal-sexual-conduct conviction, arguing
that he did not receive a valid stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3.
Because appellant received a valid bench trial, we affirm.
FACTS
On the morning of July 23, 2016, police officers were dispatched to a grocery store
in response to a criminal-sexual-conduct complaint. J.S. reported that she awoke that
morning to an intruder sexually penetrating her. J.S. startled the intruder who fled. J.S.
could not locate her cellphone, so she drove to the grocery store to contact police. J.S. was
transported to the hospital . J.S. was bleeding from a vaginal laceration. Officers found
J.S.’s phone i n a drain several blocks from her apartment. O fficers found fingerprint
impressions in the dust on a partially open window at J.S.’s apartment . The fingerprints
matched those of appellant Davon Allen. He was charged with first-degree criminal sexual
conduct and burglary.
On May 15, 2017, Allen’s trial was scheduled to begin, but the parties agreed to a
stipulated-facts trial as to the first-degree criminal-sexual-conduct charge. The state agreed
to dismiss the burglary charge and the parties agreed to a 192 -month sentence . Allen
agreed that the state would draft facts c onsistent with its case, and that he did not have to
“agree that those fact[s] are true,” but would agree that they are the facts that the district
court would consider in determining whether he was guilty.

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Although Allen claimed to feel “forced” to proceed in this manner, the district court
informed him that he had to make a decision on how to proceed, because the case was
almost a year old, had been continued, and was scheduled for a jury trial that day . Allen
claimed several times that the facts in the written stipulation were “not true,” but eventually
agreed to submit it to the district court. Allen indicated that he understood the risks of
going to trial and waived his right to a jury trial.
On May 18, 2017, the district court concluded that Allen was guilty of first-degree
criminal sexual conduct. The district court sentenced Allen to 192 months in prison. This
appeal followed.
D E C I S I O N
Stipulated-facts trial
Allen claims that he is entitled to a new trial because the stipulated-facts proceeding
that occurred did not fall within the framework authorized by Minn. R. Crim. P. 26.01,
subd. 3. “ The interpretation of the rules of criminal procedure is a question of law that
[this court] review[s] de novo.” Dereje v. State, 837 N.W.2d 714, 720 (Minn. 2013).
Under rule 26.01, subdivision 3, the parties “may agree that a determination of [the]
defendant’s guilt . . . may be submitted to and tried by the court based on stipulated facts.”
Minn. R. Crim. P. 26.01, subd. 3(a) (2016).1 The defendant must waive the right to
“(1) testify at trial; (2) have the prosecution witnesses testify in open court in the

1 The rule has since been modified, stating that the parties “may agree that a determination
of the defendant’s guilt . . . may be submitted to and tried by the court based entirely on
stipulated facts, stipulated evidence, or both.” Minn. R. Crim. P. 26.01, subd. 3(a) (2017).

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defendant’s presence; (3) question those pr osecution witnesses; and (4) require any
favorable witnesses to test ify for the defense in court.” Id. And the parties’ “ agreement
and the waiver must be in writing or be placed on the record.” Id., subd. 3(b).
Allen does not claim that his waiver was invalid or that the agreement was not in
writing or otherwise on the record; rather, he claims t hat his stipulated -facts trial was
invalid because he never agreed that the “facts” in the stipulation were the facts of the case.
Allen cites Dereje to support his claim that a stipulated -facts trial is invalid when
the parties do not agree about the actual events that occurred . 837 N.W.2d at 720. In
Dereje, the parties agreed to a stipulated -facts trial pursuant to rule 26.01, subdivision 3 .
Id. at 719. The defendant waived his trial rights and the parties “submitted the complaint
and police reports” to the district court f or the stipulated-facts trial. Id. The district court
found the defendant guilty after accepting the victim’s version of events. Id. Dereje argued
that he did not receive a valid stipulated-facts trial. Id.
The state argued that the rule “permits a defendant to stipulate to a body of evidence
containing contrary versions of events, and that such a stipulation does not require
agreement as to the accuracy of the facts reported, but merely to the fact that the evidence
presented was reported.” Id. at 720. The supreme court disagreed, stating that a mere
agreement between the parties on t he material to be submitted is not an agreement about
the actual events that occurred. Id. In other words, a valid stipulated-facts trial requires an
agreement as to the facts, not an agreement as to what material is submitted to the district
court. Because the information presented to the district court included the victim’s version
of events and the defendant’s version of events, the district court had to reject one, making

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the proceeding a bench trial rather than a stipulated -facts trial. Id. at 721. The supreme
court held that “the submission of documentary evidence presenting contradictory versions
of events cannot constitute a valid trial on stipulated facts.” Id. But the court rejected the
demand for a new trial because the defendant received a valid bench trial under rule 26.01,
subdivision 2. Id.
Based on Dereje, the procedure here was proper because the district court did not
consider documentary evidenc e containing contradictory versions of events. The district
court considered only the written stipulation that did not include Allen’s version of events.
During the hearing, Allen agreed that neither the police reports nor his statement would be
submitted. His attorney stated: “[T]he state would be putting the words down on the page
that . . . you don’t have to agree are true, but you would be agreeing that those are the facts
that the [c]ourt can consider when ma king the determination on guilt.” The district court
told Allen that his “version of what happened is not going to be considered,” and that if he
agreed to the stipulated-facts trial, he was agreeing to have the district court decide the case
based on the stipulation.
Allen argues, however, that the stipulated-facts trial was invalid because he “never
stipulated to the ‘facts’ cons idered by the district court.” Allen relies on the supreme
court’s statements in Dereje that a “stipulation” is “[a] voluntary agreement between
opposing parties concerning some relevant point,” and a “fact” is “[s]omething that actually
exists; . . . [a]n actual or alleged event or circumstance ”; thus, “[a] stipulated fact is [an]
agreement between opposing parties regarding th e actual event or circumstance.” Id. at
720 (quotations omitted). A llen claims that the stipulated facts are not what actually

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occurred. In Dereje, however, in making these statements, the supreme court was
explaining that a stipulated-facts trial is not an agreement on the material to be submitted,
but rather an agreement about the actual events that occurred. Id. Here, the “facts” in the
stipulation relate to the actual events that occurred. Allen, although denying that the facts
in the stipulation were accurate, signed the form and agreed to submit it to the district court.
Based on Dereje, the version of r ule 26.01, subdivision 3, that the d istrict court
applied prohibits disputed evidence rather than “facts” from forming the basis of a decision
in a stipulated-facts trial. The district court here did not consider a packet of evidence, but
rather only the stipulation . And although Allen cla ims that the stipulation is invalid
because he disputes the accuracy of the stipulated facts, Dereje stated that a “fact” is “[a]n
actual or alleged event or circumstance,” id. at 720 (quotation omitted), and the stipulation
includes what the state alleged occurred.
Although we conclude that the stipulated -facts trial here conformed to the
instruction in Dereje, in that it did not include the district court’s consideration of
contradictory evidence, our review of the stipulation leads us to conclude that Allen, rather
than receiving a stipulated-facts trial, received a valid bench trial. See id. at 721 (stating
that when a defendant does not receive a valid stipulated -facts trial, a ne w trial is not
warranted if the defendant received a valid bench trial under rule 26.01, subdivision 2, and
validly waived his jury -trial rights, and the district c ourt made detailed and thorough
findings of fact).
The stipulated f acts that the parties submitted include the following. On July 23 ,
2016, J.S. went to bed alone around 3:00 a.m. Around 5:00 a.m., J.S. awoke and felt a man

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penetrating her vagina with his penis. The man initiated sexual penetration while J.S. slept.
J.S. did not consent to sexual pe netration by this man. The man fled when J.S. woke up.
J.S. was unable to provide a physical description of the man. A sexual-assault examination
showed that J.S. suffered a laceration on her vaginal opening that was bleeding during the
exam. Fingerpri nt impressions identified on a window of J.S.’s apartment belonged to
Allen. The DNA profile recovered from the sperm cell fraction from J.S.’s vaginal swab
was a single source DNA profile that matched Allen’s DNA profile. J.S. does not know
Allen and did not consent to sexual intercourse with him.
The stipulation does not state that Allen sexually penetrated J.S.; it states that a
“man” did. This is more akin to a bench trial because it leaves the district court to draw
inferences from the stipulatio n and requires some fact -finding. The straightforward
inference exists in the stipulation that the “man” who penetrated J.S.’s vagina without her
consent while she slept was Allen based on the facts that J.S. does not know Allen and did
not consent to sex ual intercourse with him, his fingerprints were on a window to J.S.’s
apartment, and the DNA match shows that Allen had sexual intercourse with J.S.
The procedure, therefore, fails to conform to the v ersion of rule 26.01, subdivision
3, that the district court applied because the stipulation does not state “the actual events
that occurred,” see id. at 720, by simply providing information from which the district court
could infer what actually occurred. As in Dereje, however, this procedu re meets the
requirements in rule 26.01, subdivision 2, for a bench trial because Allen consented to the
stipulation, Allen knowingly waived his right to cross -examination and to su bmit

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supporting evidence, and the district court made thorough findings of fact based on the
stipulation. See Minn. R. Crim. P. 26.01, subd. 2; 837 N.W.2d at 721.
Pro se brief
Allen filed a pro se supplemental brief, raising claims that he was prejudged by the
district court. While Allen’s pro se claims could be deemed forfeited because they are
unsupported by the record and lacking argument and citation to legal authority, we have
considered Allen’s claims and conclude that each lacks merit. See State v. Bartylla , 755
N.W.2d 8, 22 ( Minn. 2008) (stating that this court “ will not consider pro se claims on
appeal that are unsupported by either arguments or citations to legal authority ”); Ture v.
State, 681 N.W.2d 9, 20 (Minn. 2004) (rejecting pro se arguments without detailing
consideration of each argument).
Affirmed.