State of Minnesota vs. Joshua Lee Myhre

On September 29, 2012, Deputy Bill Hargrove of the Houston County Sherriff’s

Office pulled over a vehicle after he observed the vehicle traveling the wrong way on a

divided highway. Deputy Hargrove identified the driver of the vehicle as Appellant

Joshua Lee Myhre. During the ensuing traffic stop, Myhre failed two sobriety tests.

Myhre also provided a “very weak” breath sample and later refused to provide a second

sample. Myhre’s refusal to provide a second breath sample violated Minn. Stat. §

169A.20, subd. 2 (2014). Because Myhre had at least three prior alcohol-related driving

incidents, he was charged with first-degree refusal to submit to testing and first-degree

driving under the influence. See Minn. Stat. § 169A.20, subds. 1-3 (2014).

After an unsuccessful motion to dismiss the criminal complaint for lack of

probable cause, Myhre challenged the constitutionality of the implied-consent statute.

The district court heard argument on the constitutionality of the implied-consent statute

during a contested omnibus hearing and ultimately concluded that the statute was

constitutional. Myhre subsequently entered into an agreement with the prosecution in

order to resolve his case without a jury trial. Under that agreement, the prosecution

dismissed the charge for driving under the influence.

Three days later, Myhre signed a plea petition, stating that he was waiving his

right to a jury trial and pleading guilty to the refusal-to-test charge. The plea petition also

stated that Myhre’s attorney told Myhre—and Myhre understood—that he would “have

the right to appeal, but that any appeal or other court action [Myhre might] take claiming

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error in the proceedings probably would be useless and a waste of [his] time and the

court’s.” The district court held a plea hearing to receive Myhre’s plea and resolve the

case. During that hearing, the district court examined Myhre on the record and obtained

a clear and complete waiver of his right to a jury trial. The district court then asked

Myhre, “[T]o the charge . . . of first degree refusal by way of a Lothenbach plea

occurring on September 29th, 2012, how do you plead?” Myhre responded, “Guilty.”

The parties also submitted a document to the district court entitled “Joint Stipulated

Facts.” The stipulated facts are identical to the factual narrative portion of the “Statement

of Probable Cause” filed by Deputy Hargrove. After examining Myhre and considering

the information contained in the stipulated facts, the district court adjudicated Myhre

guilty of first-degree refusal to test.

To a casual observer, Myhre’s agreement with the prosecution might appear to be

an ordinary plea agreement. But the record indicates that the agreement was actually

more complex. Despite the entry of a guilty plea, it appears that Myhre, along with the

State, intended to proceed under Minn. R. Crim. P. 26.01, subd. 4. This rule allows a

criminal defendant to plead not guilty; waive all trial-related rights, including his or her

right to a jury trial; stipulate to the state’s evidence in a trial to the court; and then appeal

a dispositive, pretrial ruling. Although Myhre entered a guilty plea rather than a not

guilty plea, the record is replete with references to a so-called Lothenbach plea. In 2007,

Minn. R. Crim. 26.01, subd. 4, replaced Lothenbach as the method for preserving a

dispositive pretrial issue for appellate review in a criminal case. See State v. Diede, 795

N.W.2d 836, 842 n.2 (Minn. 2011).

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A handwritten portion of the plea agreement indicates that the plea was to be a

“Lothenbach plea.” Myhre’s attorney referenced Lothenbach multiple times when

explaining the plea agreement to the district court, stating that the plea would be entered

according to the “Lothenbach method.” Further, Myhre’s attorney explicitly stated that

the plea was entered so that Myhre could appeal the district court’s pretrial ruling on the

constitutionality of the implied-consent law, an appeal Myhre could not have taken if he

had truly entered a plea of guilty. See generally State v. Lothenbach, 296 N.W.2d 854,

857-58 (Minn. 1980) (noting that Minnesota does not recognize conditional guilty pleas).

The district court specifically asked Myhre if he was going “forward with a

Lothenbach plea,” to which Myhre responded, “Yes.” The district court clarified again

that Myhre was pleading “by way of a Lothenbach plea” before Myhre stated that he was

pleading guilty. Myhre’s attorney once again asked Myhre, this time under oath, whether

he was entering a Lothenbach plea. Myhre responded, “Yes.” Myhre’s attorney also

asked whether, after the plea was entered, Myhre intended to “appeal the Court’s finding

of guilt.” Myhre indicated that was his intent.

After Myhre testified under oath, the district court took a short recess during

which it considered the stipulated facts the parties had submitted. After returning from

the recess, the district court made findings of fact that were consistent with the relevant

stipulated facts. The district court found Myhre guilty of “failure to submit to testing in

the first degree,” citing the current case and Myhre’s three prior alcohol-related

convictions. Later, during the sentencing hearing, Myhre’s attorney and the district court

acknowledged that Myhre was pursuing an appeal of the pretrial ruling and Myhre’s

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attorney made yet another reference to the “Lothenbach plea.”

Before the court of appeals, Myhre not only argued that the implied-consent law

was unconstitutional—which was the gravamen of the pretrial ruling he sought to

challenge when he entered his plea—he also argued that his conviction was invalid

because the procedure followed in the district court did not comply with Minn. R. Crim.

P. 26.01, subd. 4. He further alleged that the district court did not make sufficient factual

findings regarding his three prior offenses. The court of appeals concluded that Myhre’s

plea did not comply with Minn. R. Crim. P. 26.01, subd. 4, because Myhre entered a

guilty plea rather than a not-guilty plea and because Myhre and the prosecutor failed to

acknowledge on the record that the pretrial issue would be dispositive. State v. Myhre,

No. A14-0670, 2015 WL 853465, at *3 (Minn. App. Mar. 2, 2015); see Minn. R. Crim.

P. 26.01, subd. 4(c). But the court of appeals decided to treat Myhre’s guilty plea as if it

were a not-guilty plea that complied with Rule 26.01, subdivision 4, and affirmed

Myhre’s conviction.1 Myhre, 2015 WL 853465, at *3-4. We granted review exclusively

on the issue of whether Myhre’s conviction was invalidated by the district court’s failure

to fully comply with the provisions of Rule 26.01, subdivision 4.

1 Because the court of appeals treated Myhre’s plea as valid under Rule 26.01, subdivision 4, it reached the question of whether the implied-consent law is unconstitutional. Myhre, 2015 WL 853465, at *4. The court of appeals affirmed the district court and upheld the constitutionality of the implied-consent law. Id. Additionally, the court of appeals declined to reach Myhre’s argument that the state failed to prove his three prior convictions because Rule 26.01, subdivision 4, allows a defendant to appeal only dispositive pretrial issues. Id. at *4 n.5.

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I.

Rules of criminal procedure are enacted under the court’s “authority to ensure the

effective functioning of the judiciary.” State v. Cheng, 623 N.W.2d 252, 257 (Minn.

2001). The interpretation of a rule of criminal procedure presents a question of law that

we review de novo. Dereje v. State, 837 N.W.2d 714, 720 (Minn. 2013), cert. denied,

___ U.S. ___, 134 S. Ct. 1772 (2014); State v. Hugger, 640 N.W.2d 619, 621 (Minn.

2002).

Neither party suggests a complete analytical framework through which we should

address Myhre’s claims, nor does our precedent clearly provide one. Although Myhre

does not explicitly propose a rule, he suggests that Rule 26.01, subdivision 4, requires

something akin to strict compliance with each of its provisions in order to produce a valid

conviction. The State, on the other hand, suggests that noncompliance with Rule 26.01,

subdivision 4, should be a basis for vacating a conviction only when the departure from

the rule impacts the defendant’s “fundamental rights” or if the district court failed to

substantially comply with the rule.

Myhre cites no precedent to support a rule of strict compliance, and we are not

aware of any cases in which we have required strict compliance with either Rule 26.01,

subdivision 4, or Lothenbach in order to produce a valid conviction. On the contrary, we

have allowed multiple convictions to stand and appeals to continue despite reliance on

flawed attempts to comply with either Rule 26.01, subdivision 4, or the Lothenbach

procedure.

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In State v. Ford, 397 N.W.2d 875 (Minn. 1986), we addressed the merits of the

appeal even though the defendant had pleaded guilty, rather than not guilty, while

attempting to comply with the Lothenbach procedure. Id. at 878. We reasoned that,

“[a]lthough [the Lothenbach] procedure was not followed in this case, the circumstances

are similar to those in Lothenbach. We will do here as we did in Lothenbach and treat

this as an appeal from a finding of guilty based on stipulated facts . . . .” Id. We took a

similar approach in State v. Verschelde, 595 N.W.2d 192 (Minn. 1999). Even though

there was “some confusion” regarding whether the defendant entered a guilty plea or a

not-guilty plea, we placed substance above form and allowed the appeal to proceed as if

the defendant’s plea had fully complied with the Lothenbach procedure. Id. at 193-95.

Finally, in State v. Diede, 795 N.W.2d 836 (Minn. 2011), the parties submitted the case to

the district court on “stipulated facts,” rather than stipulating to the State’s evidence, but

the district court proceeded as if a “Lothenbach plea” had been entered—an error almost

identical to one of the errors Myhre claims here. Id. at 842 n.2. In allowing the appeal to

proceed,2 we reasoned that the procedure employed by the district court “most closely

resemble[d]” a trial under Rule 26.01, subdivision 4. Id.

These cases clearly demonstrate that we have never required strict compliance

with the provisions of either Rule 26.01, subdivision 4, or Lothenbach. Indeed, we have 2 It does not appear that the parties in Diede argued that the plea was invalid. But if, as Myhre suggests, a procedure that does not comply with Rule 26.01, subdivision 4, cannot produce a valid conviction, it would have been inappropriate to allow the appeal to proceed, particularly given the clear departure from the requirements of the rule and the fact that we recognized and addressed the procedural irregularities in our opinion.

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tolerated a substantial amount of procedural error when the record shows that the parties

clearly intended to achieve the outcome contemplated by either Rule 26.01, subdivision

4, or Lothenbach.3 But we have never articulated a rule or framework that governs

whether a proceeding under Rule 26.01, subdivision 4, produces a valid conviction when

the proceeding does not fully comply with the provisions of the rule.

For the reasons set forth below, we conclude that a plain error analysis is the

proper framework in this case. While Myhre nominally entered a plea of guilty, the

procedure with which the parties were attempting to comply is a “trial to the court.” See

Minn. R. Crim. P. 26.01, subd. 4(e) (“The defendant must stipulate to the prosecution’s

evidence in a trial to the court . . . .”). Myhre did not object to any errors in the district

court and actually participated in, or even instigated, several of the alleged errors he now

challenges on appeal. Ordinarily, we do not consider errors that were not objected to in

the district court. See State v. Osborne, 715 N.W.2d 436, 441 (Minn. 2006). Similarly,

we do not typically review errors that were invited by the defendant or that the defendant

could have prevented in the district court. See State v. Goelz, 743 N.W.2d 249, 258

(Minn. 2007).

3 In Diede, for instance, the parties actually “described the process as a trial on stipulated facts.” 295 N.W.2d at 842 n.2; see Minn. R. Crim. P. 26.01, subd. 3. The district court “described the process as a Lothenbach plea hearing.” Diede, 295 N.W.2d at 842 n.2. The process in Diede most closely resembled a trial under Rule 26.01, subdivision 4, and this court proceeded as if the parties had complied with Rule 26.01, subdivision 4. Id.

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Despite these general rules, we will review an unobjected-to error, even if the

error was invited by the defendant under the plain error test.4 See State v. Baird, 654

N.W.2d 105, 113 (Minn. 2002); Goelz, 743 N.W.2d at 258. As a result, we will treat any

errors committed by the district court or the parties as errors made during the course of a

trial and apply the plain error framework. See generally Minn. R. Crim. P. 31.02

(providing for plain error review); State v. Dalbec, 800 N.W.2d 624, 627 (Minn. 2011)

(evaluating whether an error committed in the course of a bench trial constituted

structural error and instead treating the error as a trial error). 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. State v. Griller,

583 N.W.2d 736, 740 (Minn. 1998). If the first three prongs are satisfied, we must

consider a fourth factor, “whether [we] should address the error to ensure fairness and the

integrity of the judicial proceedings.” Id.

In addition to conforming to our precedent and rules regarding how to review

unobjected-to errors, plain error analysis is consistent with the manner in which we have

evaluated analogous cases in the past. For instance, although Verschelde and Ford did

not explicitly adopt a plain error analysis, both cases appear to approach the errors

committed in the district court by determining whether the errors were prejudicial. This

approach is particularly clear in Verschelde, where the focus was on the procedure that 4 None of the errors Myhre alleges appears to fall into the narrow category of structural errors that “defy analysis by ‘harmless-error’ standards.” State v. Dalbec, 800 N.W.2d 624, 627 (Minn. 2011) (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)).

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the district court actually followed and we determined that the defendant had actually

received a Lothenbach trial. 595 N.W.2d at 195. Indeed, both Verschelde and Ford

reviewed the events in the district court to determine whether the respective defendants

had been prejudiced and focused the analysis on the intent of the parties and the fact that

all sides received what they had bargained for. See Verschelde, 595 N.W.2d at 195

(allowing the appeal to proceed because “[e]qually clear on the record before us is the

appellant’s expectation that he was preserving his right to appeal the trial court’s pretrial

ruling, and the state’s understanding that an appeal would follow”); Ford, 397 N.W.2d at

878 (noting that the defendant intended to appeal a pretrial order and deciding to treat the

appeal as if it had complied with Lothenbach).

A plain error analysis is also consistent with our more recent decision in Dereje v.

State, 837 N.W.2d 714 (Minn. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1772 (2014),

relied upon by the court of appeals here. See Myhre, 2015 WL 853465, at *3-4. Dereje

involved a stipulated facts trial during which the parties submitted evidence to the district

court that included contested facts instead of agreeing on a set of stipulated facts, as

required by Minn. R. Crim. P. 26.01, subd. 3. Dereje, 837 N.W.2d at 719. We held that

Dereje did not receive a stipulated facts trial because the parties submitted contested

evidence and the district court made extensive findings of fact, rather than applying the

law to stipulated facts. Id. at 720-21. But we concluded that Dereje had received a valid

bench trial under Minn. R. Crim. P. 26.01, subd. 2, and affirmed his conviction. Dereje,

837 N.W.2d at 721.

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Although we did not explicitly adopt a plain error analysis in Dereje, our analysis

and conclusion are consistent with a plain error framework. Because Dereje did not

object to the error in the district court and, much like this case, substantially participated

in the error, id. at 719, his claim was subject to plain error review. We found that there

was an error and it is apparent that the error in Dereje was “plain.” See State v. Ramey,

721 N.W.2d 294, 302 (Minn. 2006) (holding that usually an error is plain when it

“contravenes case law, a rule, or a standard of conduct”). But Dereje’s claim failed

because he could not show prejudice. As we explained, Dereje received a valid bench

trial under Minn. R. Crim. P. 26.01, subd. 2. Consequently, Dereje was unable to show

that the errors in the trial court affected his substantial rights. Thus, the plain error

framework is both consistent with our holding in Dereje and helps explain the pivotal

importance of the fact that Dereje received a valid bench trial under Rule 26.01,

subdivision 2.

Because applying a plain error analysis to this case is consistent with both the

rules of criminal procedure and our precedent, we hold that plain error analysis applies to

unobjected-to errors committed under Rule 26.01, subdivision 4. Myhre did not object in

the district court to the errors he now raises on appeal. As a result, we will review

Myhre’s claims for plain error.

II.

Myhre asserts that five errors render his conviction invalid. First, Myhre claims

that an error was committed when he entered a guilty plea, rather than a not-guilty plea.

Second, Myhre and the prosecutor failed to acknowledge on the record that the pretrial

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issue Myhre intended to appeal was dispositive. Third, Myhre did not acknowledge that

appellate review would be limited to the pretrial issue. Fourth, the parties submitted

stipulated facts, rather than stipulated evidence, to the district court. Finally, Myhre

claims that the district court did not consider evidence as a trier of fact, but instead used

the stipulated facts to support Myhre’s guilty plea. Because Myhre did not object to any

of these alleged errors in the district court, each is subject to a plain error analysis. See

Baird, 654 N.W.2d at 113.

A.

As an initial matter, we must address which of the alleged errors to review on

appeal. Myhre not only failed to object to these errors in the district court, he also failed

to raise all but two of them before the court of appeals. The only two errors Myhre

alleged in his brief to the court of appeals were that he pleaded guilty instead of not guilty

and that both parties failed to acknowledge the dispositive nature of the pretrial issue on

the record before the district court. Myhre’s petition for review also relies exclusively on

the fact that he pleaded guilty instead of not guilty and failed to acknowledge the

dispositive nature of the pretrial issue on the record. Finally, although Myhre’s brief to

this court does assert that the district court committed the three additional errors he now

raises, it provides no analysis or argument regarding these three errors.

Issues not raised in the court of appeals are usually forfeited here. State v.

Campbell, 814 N.W.2d 1, 4 n.4 (Minn. 2012) (declining to reach an issue that was not

raised in the district court or before the court of appeals). “Generally, we do not address

issues that were not raised in a petition for review.” In re GlaxoSmithKline PLC, 699

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N.W.2d 749, 757 (Minn. 2005). We have also declined to address issues that were raised

in a brief to our court, but were not adequately argued or explained. State v. Bernard,

859 N.W.2d 762, 765 n.2 (Minn.), cert. granted on other grounds, ___ U.S. ___, 136 S.

Ct. 615 (2015). Finally, we have declined to consider issues that were not raised in the

petition for review and not fully developed in the appellant’s brief when we thought it

was possible that appellant’s failure to raise the issue in the petition for review and failure

to argue it thoroughly may have inhibited the respondent’s ability to argue the issue to

our court. In re GlaxoSmithKline PLC, 699 N.W.2d at 757.

All of these shortcomings are present in this case. Myhre failed to object to the

three additional errors in the district court, failed to raise them before the court of

appeals, and failed to address them in his petition for review. Myhre’s brief to this court

mentions these three issues in passing, but provides no substantial argument or analysis.5

Finally, the State did not address the three alleged errors in its brief and we cannot rule 5 The dissent argues that Myhre’s brief adequately addressed the error that was allegedly committed when Myhre failed to acknowledge that his right to appeal would be limited to the pretrial issue. The dissent quotes Myhre’s briefing on the issue and claims that his brief supports his claim for relief. What the dissent fails to mention is that the portion of Myhre’s brief it quotes is the entirety of Myhre’s argument on the issue. It spans two sentences and contains a total of 48 words. While the brief identifies the provision of the rules Myhre claims was violated and asserts that Myhre did not make the required acknowledgement, the brief provides no further argument or analysis. Most importantly, the brief never articulates why that single error should entitle Myhre to relief. The dissent does not just do the heavy lifting for Myhre on this issue, it does substantially all of the lifting. In the end, Myhre’s “argument” regarding the third alleged error is nothing more than a bare assertion and does not properly present the issue to this court. See Bernard, 859 N.W.2d at 765 n.2 (rejecting as inadequately briefed a claim that a statute should have been found facially unconstitutional when the litigant provided no further analysis or argument).

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out the possibility that Myhre’s repeated failure to raise and properly articulate these

issues contributed to the State’s lack of argument.

When, as in this case, a defendant fails to preserve issues for review at every level

of the judicial process and provides no excuse for his failure, those issues are forfeited

and we will not consider them.6 Consequently, issues regarding whether Myhre

acknowledged that his appeal would be limited to the pretrial issues, the parties’

submission of stipulated facts instead of stipulated evidence, and whether the district

court made findings of fact are all forfeited and will not be considered further.

B.

Myhre argued two errors to the court of appeals and raised those same two errors

in his petition for review. First, Myhre alleges that the district court erred because he

entered a plea of guilty rather than entering a not-guilty plea as required by Rule 26.01,

subdivision 4. Second, Myhre argues the district court erred because the parties failed to

acknowledge on the record that the pretrial issue being appealed would be dispositive.

We address each of Myhre’s arguments under the plain error framework.

Myhre asserts that the district court committed an error by allowing him to plead

guilty rather than not guilty. Myhre is correct in concluding that the district court

6 The dissent urges us to reach the merits of Myhre’s third asserted error “in the interests of justice.” Considering the totality of the circumstances in this case— particularly Myhre’s repeated and unexcused failure to raise this issue, despite numerous opportunities—we decline to do so.

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committed an error by failing to follow the plain language of Rule 26.01, subdivision 4.7

See Ramey, 721 N.W.2d at 302. Additionally, because the text of Rule 26.01,

subdivision 4, clearly requires a not-guilty plea, the district court’s error was plain. See

id. (stating that “[u]sually [an error is plain] if it contravenes case law, a rule, or a

standard of conduct”).

But, even though the district court committed a plain error, Myhre must show that

the error impacted his substantial rights in order to satisfy the third prong of the plain

error test. See Griller, 583 N.W.2d at 740. To that end, Myhre claims that his guilty plea

caused him to receive “no trial at all” when he was entitled to a trial to the court based on

stipulated evidence. The record does not support Myhre’s position.

The district court repeatedly emphasized that it would be “consider[ing] the

stipulated facts in determining [Myhre’s] guilt or innocence.” The court asked Myhre

whether he was “willing to allow the matter to be submitted to the Court on the stipulated

findings of fact knowing that [the court] may very well [find Myhre guilty].” After

ensuring that Myhre was knowingly and intelligently waiving his right to a jury trial and

his right to confront the witnesses against him, the court stated, “What I intend to do,

after I’ve taken the brief testimony from you . . . [is] retire to chambers to review the

stipulated facts, and then we’ll return . . . after I’ve had a chance to look that over, to

make a final determination of guilt.” Once the court reviewed the stipulated facts, it

made factual findings of its own, on the record, and concluded that Myhre was guilty of 7 We disagree with the court of appeals’ conclusion that it was possible to treat Myhre’s guilty plea as a not-guilty plea.

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first-degree refusal to test.

The district court clearly indicated that it intended to conduct an independent

review of the facts and make an independent judgment concerning Myhre’s guilt. The

process the court followed, including making factual findings on the record and clearly

adjudicating Myhre guilty only after reviewing the facts submitted to the court, generally

constitutes a “trial to the court,” as contemplated by Rule 26.01, subdivision 4.

Consequently, we conclude that although Myhre may have nominally entered a plea of

guilty, his guilty plea had no impact on his substantial rights. As a result, Myhre cannot

satisfy the third prong of the plain error test and he is not entitled to relief based on this

error.

Next, Myhre contends that an error was committed when the parties failed to

acknowledge, on the record, that the pretrial issue Myhre intended to appeal would be

dispositive, as required by Rule 26.01, subdivision 4. Because Myhre failed to object to

the error in the district court, it too is subject to plain error analysis. Baird, 654 N.W.2d

at 113. The text of Rule 26.01, subdivision 4, clearly requires the prosecutor and the

defendant to acknowledge the dispositive nature of the pretrial issue on the record. As a

result, the district court committed a plain error when it failed to require those

acknowledgments in this case. See Ramey, 721 N.W.2d at 302.

Once again, however, Myhre must demonstrate that the error impacted his

substantial rights. Myhre does not fully develop this argument or clarify how a failure to

acknowledge the dispositive nature of the pretrial issue prejudiced him. After a careful

consideration of the record and the circumstances of this case, we have concluded that the

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failure to acknowledge the dispositive nature of the pretrial issue did not and could not

have prejudiced Myhre.

If the pretrial issue appealed pursuant to Rule 26.01, subdivision 4, were not

actually dispositive, a criminal defendant could hypothetically be prejudiced if he or she

were to prevail on appeal because he or she might still be subject to prosecution on the

same charge in the district court after the appeal. Where the pretrial issue is actually

dispositive, however, there is no risk of prejudice because the defendant prevailing on

appeal will be able to assert the dispositive nature of the ruling on remand to the district

court. Here, Myhre was challenging the constitutionality of the statute under which he

was charged. Had the court of appeals agreed with Myhre and held that the implied

consent statute is unconstitutional, there is no doubt that ruling would have been

dispositive. Of course, the court of appeals held that the statute is, in fact, constitutional

and affirmed Myhre’s conviction, foreclosing the possibility that Myhre could have been

prejudiced by this error. Consequently, not only did Myhre not suffer any actual

prejudice in this case, he suffered no risk of prejudice as a result of the error. Because he

cannot show prejudice to his substantial rights, Myhre is not entitled to relief based on

this error.

Although we affirm Myhre’s conviction today, it would be a mistake to minimize the errors that spawned this appeal. Lothenbach has not been the law in this state for more than 8 years. The fact that the district court and experienced attorneys are still attempting to employ a procedure long ago superseded by rule is, to say the least, concerning. It is made all the more alarming because, even if Lothenbach were still the law, the district court’s procedure in this case failed to even comply with Lothenbach’s requirements. Nevertheless, given our application of the plain error standard in this case

and the arguments of the parties, we affirm the decision of the court of appeals.