(dissenting).
This case squarely presents an important statewide issue of first impression: whether the double jeopardy protections, provided by statute and the state and federal constitutions, bar future prosecution when a defendant deliberately fails to raise a known defect in the complaint before the jury is sworn. The Minnesota Rules of Criminal Procedure have long required that a defendant must bring a motion to dismiss the complaint before the omnibus hearing. Appellant Sahr knew the complaint had a curable defect and deliberately failed to raise the defect in order to improperly manufacture a double jeopardy defense. In my view, the district court erred when it considered Sahr’s untimely motion to dismiss the complaint based on a known defect in the complaint after the jury was sworn. I also conclude that Sahr’s rule violation prevents him from asserting the protections of the double jeopardy statute, Minn.Stat. § 609.04 (2010), and the double jeopardy provisions of the state and federal constitutions, Minn. Const, art. I, § 7 and U.S. Const, amend. V.
The majority contends that the district court’s order dismissing the complaint constituted an acquittal on the merits, and concludes that further prosecution is therefore barred by double jeopardy. The reasoning to support its contention, however, is flawed. Specifically, the dismissal of a complaint upon the State’s concession that the facts alleged in the complaint do not support the charged offense is not a determination of innocence by the fact-finder, and therefore is not an acquittal on the merits. Instead, it is a dismissal on the grounds of a variance between the charging document and the proof.1 See State v. Holton, 88 Minn. 171, 174, 92 N.W. 541, 542 (1902) (explaining that there is no final judgment of acquittal when a district court dismisses a charging document on the grounds of a variance between the charging document and the proof, or the charging document “was dismissed upon an objection to its form or substance”). As Abraham Lincoln wisely recognized, 11 [C]ailing the tail a leg would not make it a leg.” The' Yale Book of Quotations 465 (Fred R. Shapiro ed., 2006). To explain my dissent, I first' describe the relevant facts, then consider issues related to Sahr’s deliberate failure to raise a known defect in the complaint, and then examine the district court’s dismissal of the complaint.
I.
The relevant facts are that appellant Michael Sahr’s 8-year-old niece reported to police that Sahr rubbed her bare vaginal area with his hand. Based on the report, respondent State of Minnesota charged Sahr with first-degree “sexual contact with a person under 13 years of age” in violation of Minn.Stat. § 609.342, subd. 1(a) (2010) (prohibiting a person from having “sexual contact with a person under 13 years of age”). Sahr’s alleged conduct fell within the statutory definition of “sexual *98contact,” which is broadly defined as “the intentional touching by the actor of the complainant’s intimate parts [with sexual or aggressive intent].” MinmStat. § 609.341, subd. ll(a)(i) (2010). But Sahr’s alleged conduct did not fall within the more specific statutory definition of “sexual contact with a person under 13” years of age, which is narrowly defined as “the intentional touching of the complainant’s bare genitals by the actor’s bare genitals ... with sexual or aggressive intent.” Minn.Stat. § 609.341, subd. 11(c) (2010) (emphasis added).
After reviewing the complaint, defense counsel knew the complaint was defective because it charged the “wrong offense.” Specifically, the complaint charged an offense requiring bare genital-to-genital contact, when the probable cause section of the complaint did not allege bare genital-to-genital contact and the State had no evidence of bare genital-to-genital contact. Had the charging defect been brought to the prosecutor’s attention, the State could have cured the defect by amending the charged offense to second-degree sexual contact in violation of Minn.Stat. § 609.343, subd. 1(a) .(2010) (prohibiting a person from engaging in “sexual contact with another” when the complainant is under 13 years of age). Despite the requirement that a motion to dismiss a complaint must be made 3 days before the omnibus hearing, see Minn. R.Crim. P. 10.03, subd. 1; Minn. R.Crim. P. 17.06, subd. 3, defense counsel deliberately remained silent about the curable defect in the complaint, and improperly manipulated the proceedings before the court.
After the jury was impaneled and sworn, defense counsel raised the issue of the State’s inability to prove the elements of first-degree criminal sexual conduct because the facts alleged in the complaint, if proved, would be insufficient as a matter of law to support the first-degree criminal sexual conduct offense charged. The State immediately moved to amend the complaint to add a charge of second-degree criminal sexual conduct. The district court denied the State’s motion, erroneously concluding that the amendment charged a different offense and was therefore prohibited by Minn. R.Crim. P. 17.05.2
Defense counsel then requested that the district court on its own motion dismiss the complaint in the interests of justice pursuant to Minn.Stat. § 631.21 (2010). Section 631.21 allows the court to order dismissal of an action on its own motion, or on motion of the prosecuting attorney, and in furtherance of justice.3 A defendant’s request for a dismissal under Minn.Stat. § 631.21, cannot reasonably be described as a dismissal ordered on the district court’s own motion because the statute is limited to motions to dismiss made by the court or prosecutor. The State correctly argued that defense counsel’s request was really a disguised motion for a mistrial. The district court rejected the State’s argument and dismissed the complaint in the furtherance of justice, without resolving any dispute regarding the available evidence.
*99When the State later moved to file a new complaint charging Sahr with second-degree criminal sexual conduct, the district court denied the motion, concluding that a new complaint charging second-degree criminal sexual conduct would violate the principles of double jeopardy. The State petitioned the court of appeals for writs of prohibition and mandamus. Without deciding the merits of the petition, the court of appeals remanded to the district court for further findings regarding the dismissal of the complaint.
On remand, the district court characterized its midtrial dismissal of the complaint as a finding of insufficient evidence to convict Sahr of first-degree criminal sexual conduct. The district court then reaffirmed its denial of the State’s motion to file a new complaint, explaining that continued prosecution would violate Minn.Stat. § 609.04, and the state and federal Double Jeopardy Clauses. On appeal, the court of appeals reversed the district court’s denial of the State’s motion to file a new complaint, concluding that state and federal Double Jeopardy Clauses did not bar further prosecution.
We granted Sahr’s petition for review. In our order granting review, we directed the parties “to include in their briefs a discussion of whether a defendant waives or forfeits his double jeopardy rights if he fails to raise a known defect in the complaint before jeopardy attached.”
II.
We have not. previously considered the effect of a defendant’s intentional violation of a court rule on the defendant’s ability to assert the double jeopardy protections set forth in Minn.Stat. § 609.04 and the Double Jeopardy Clauses.4 The majority argues that our decision in State v. Large, 607 N.W.2d 774 (Minn.2000), prevents the court from considering whether Sahr is precluded from asserting the protections of double jeopardy in this case. I disagree for three reasons.
First, in Large there was no claim that Large deliberately engaged in conduct that allowed him to assert the protections of double jeopardy, so we did not need to decide the threshold issue of whether Large could assert a double jeopardy claim. Instead, the alleged error in Large was whether the district court improperly construed Minn.Stat. § 609.035 (2010), when it concluded the jury’s “not guilty” verdict on a sexual misconduct charge that required penetration prevented consideration of the State’s evidence of an act of sexual contact that occurred during the same behavioral incident. Large, 607 N.W.2d at 778-80. After reviewing the remaining evidence, the district court in Large concluded the State “had not produced evidence ' sufficient to establish [Largej’s guilt on the [sexual contact] count.” Id. at 780.
Second, the majority interprets Large to conclude that a defendant’s rule violation in failing to raise a known defect in a complaint before jeopardy attaches is not appealable by the State. Specifically, the new majority rule would allow review of *100the rule violation issue by a defendant when a district court denies a defendant’s motion to dismiss a defective complaint after the jury is sworn, but not allow review when a district court grants the motion to dismiss. The majority’s argument is not supported by our analysis in Large, and will reward rule violations by a defendant and his attorney. In my view, the majority’s new rule will result in more rule violations by a defendant and his attorney to achieve an acquittal through any means.
Third, the majority transforms the narrow rule announced in Large into a blanket rule that bars review of any legal issue related to a defendant’s assertion of double jeopardy protections. Such an expansion is not required by our analysis in Large and is a departure from Supreme Court precedent, including Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), and Sanabria v. United States, 437 U.S. 54, 77-78, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). Our analysis in Large is consistent with the United States Supreme Court’s analysis in Rum-sey. The alleged error in Rumsey was that the district court improperly construed a statute defining the pecuniary gain aggravating sentencing factor, when the district court concluded the prosecution failed to prove the existence of the pecuniary gain sentencing factor. 467 U.S. at 205-06, 211, 104 S.Ct. 2305. The Court emphasized in Rumsey that “ ‘[t]he fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles ... affects the accuracy of that determination, but it does not alter its essential character.’” Id. at 211, 104 S.Ct. 2305 (quoting United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (internal quotation marks omitted)).
Our analysis in Large is also consistent with the United States Supreme Court’s analysis in Sanabria. The alleged error in Sanabria was that the district court improperly construed the language of the indictment when it excluded certain evidence at trial. 437 U.S. at 68, 98 S.Ct. 2170. After the parties presented then-evidence, Sanabria moved for a judgment of acquittal arguing that without the excluded evidence, the prosecution failed to prove the charge in question. Id. at 58-59, 98 S.Ct. 2170. The district court granted Sanabria’s motion for a judgment of acquittal. Id. at 59, 98 S.Ct. 2170. On appeal, the United States Supreme Court characterized the district court’s action as “an erroneous evidentiary ruling, which led to an acquittal for insufficient evidence,” and therefore “[t]hat judgment of acquittal, however erroneous, bar[red] further prosecution on any aspect of the [charge in question].” Id. at 68-69, 98 S.Ct. 2170.
Unlike Large, Rumsey, and Sanabria, the alleged error in Sahr’s case does not involve an exclusion of evidence that led to an acquittal' for insufficient evidence. Instead, the alleged error here is whether the district court improperly considered Sahr’s untimely motion to dismiss the complaint based on a known defect in the complaint after the jury was sworn. The procedural ruling that allowed Sahr to move for dismissal after the jury was sworn did not exclude or otherwise limit the State’s evidence, and therefore did not lead to an acquittal for insufficient evidence. The majority’s broad reading of Large creates the blanket rule that an acquittal on the merits bars review of any issue, including a procedural objection, whenever the issue relates to a defendant’s assertion of double jeopardy protections. Such an expansive view is not required by Large, and represents a departure from existing Supreme Court precedent, including Rumsey and Sanabria. Because Large does not prevent us from considering whether the district court erred when *101it considered the merits of Sahr’s untimely motion to dismiss the complaint, I now consider that issue.
The. Minnesota Rules of Criminal Procedure “are intended to provide a just determination of criminal proceedings, and ensure a simple and fair procedure that eliminates unjustified expense and delay.” Minn. R.Crim. P. 1.02; accord State v. Lefthand, 488 N.W.2d 799, 802 (Minn.1992). To ensure fair criminal proceedings, Minn. R.Crim. P. 10.01, subd.. 2, provides that “[djefenses, objections, issues, or requests that can be determined without trial on the merits must be made before trial.”5 A motion to dismiss a. complaint must be made 3 days before the omnibus hearing. Minn. R.Crim. P. 10.03, subd. 1; Minn. R.Crim. P. 17.06, subd. 3. If a complaint is dismissed for a curable defect, “further prosecution for the same offense will not be barred.” Minn. R.Crim. P. 17.06, subd. 4(3). The phrase “same offense” encompasses lesser-included offenses because they are subsumed in the greater offense. State v. Pettee, 638 N.W.2d 126, 129 n. 2 (Minn.1995). In sum, the Minnesota Rules of Criminal Procedure ensure fairness in criminal proceedings by requiring a defendant to object to curable defects in a complaint so the State has an opportunity to cure the defect before trial. Consequently, the district court erred when it considered Sahr’s untimely motion for dismissal of the complaint when Sahr failed to raise the known defect in the complaint before the jury was sworn.
I next consider whether Sahr’s rule violation prevents him from asserting the protections of the double jeopardy statute, Minn.Stat. § 609.04, and the double jeopardy provisions of the state and federal Constitutions, Minn. Const, art. I, § 7 and U.S.- Const, amend. V; “The Double Jeopardy Clauses .of the United States and Minnesota Constitutions protect a criminal defendant from a second prosecution for the same offense after an acquittal on the merits.” Large, 607 N.W.2d at 778 (footnote omitted). Similarly, Minn.Stat. § 609.04, subd. 2, provides that an “acquittal of a crime is a bar to further prosecution of any included offense, or other degree of the same crime.” Jeopardy attaches when the jury is impaneled and sworn. Large, 607 N.W.2d at 778. But absent a “risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.” Serfass v. United States, 420 U.S. 377, 391-92, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975).
In describing the principle underlying double jeopardy protection, we have said, “[t]he protective doctrine of double jeopardy [whether pursuant to constitutional provision or statute] is nothing more than the declaration of an ancient and well-established public policy that no man should be unduly harassed by the state’s being permitted to try him for the same offense again and again until the desired result is achieved.” State v. Thompson, 241 Minn. 59, 62, 62 N.W.2d 512, 516 (1954). The United States Supreme Court has similarly described the principle underlying the Double jeopardy Clause:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an *102alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be- found guilty.
Scott, 487 U.S. at 87, 98 S.Ct. 2187 (internal quotation marks omitted) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)).
In Scott, the Court held that further prosecution of a defendant after a midtrial dismissal due to the government’s prein-dictment delay did not violate any of the interests protected by the Double Jeopardy Clause. Id. at 98, 100, 98 S.Ct. 2187. The underlying double jeopardy principle is not implicated when a defendant “chooses to avoid conviction and imprisonment, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.” Id. at 96, 98 S.Ct. 2187.
But the Court has emphasized that the Double Jeopardy Clause prohibits further prosecution when a district court’s action, however erroneous, amounts to an acquittal on the merits. Rumsey, 467 U.S. at 211, 104 S.Ct. 2305; Scott, 437 U.S. at 98, 98 S.Ct. 2187; Sanabria, 437 U.S. at 64, 98 5.Ct. 2170. As discussed above, we reached a similar conclusion in Large, 607 N.W.2d at 779-80, when we concluded that the district court’s midtrial dismissal implicated the underlying double jeopardy principle, even if the court’s legal ruling was erroneous.
Notably, however, the Fifth Circuit has opined that a defendant who waits until midtrial to raise a known defect in the indictment is not entitled to the protection of the Double Jeopardy Clause. See United States v. Kehoe, 516 F.2d 78, 86 (5th Cir.1975); cf. 3 Nancy Hollander et al., Wharton’s Criminal Procedure § 13:7 (14th ed.2010) (explaining that “courts have refused to recognize the bar of prior jeopardy where the defendant obtains an acquittal through the use of fraud or corruption”). Citing Kehoe, the Minnesota Court of Appeals has stated in dicta that it “would never condone” a defense tactic of intentionally delaying a motion to dismiss until' after jeopardy attached. State v. Rhines, 435 N.W.2d 542, 545-46 (Minn.App.1989), rev. denied (Minn. Mar. 17, 1989); cf. State v. Goelz, 743 N.W.2d 249, 261 (Minn.2007) (Anderson, C.J., concurring) (stating that courts “ ‘disfavor the deliberate tactic of lying in the weeds in anticipation of an ambush’ ” in the context of introducing impeachment evidence on rebuttal (internal quotation marks omitted) (quoting United States v. Calvert, 523 F.2d 895, 912 (8th Cir.1975))).
Our rules of criminal procedure clearly state that challenges to a complaint must be raised by motion at least 3 days before the omnibus hearing. Sahr’s counsel deliberately chose to not raise the known defect in the complaint until after the jury was sworn to prevent the State from curing the defect before jeopardy attached.6 *103Essentially, defense counsel argues that the end justifies the means, even if the means are improper. The problem is that defense counsel’s rule opens the door to either party deliberately violating court rules to obtain dismissal or conviction in a criminal case. Such a result would undermine our whole criminal justice system.
Whether defense counsel’s deliberate decision not to raise the known defect in the complaint until after the jury was sworn was made in bad faith or under a belief that he was ethically bound to do so is immaterial to the issue before the court. If, as defense counsel claims, he believed his conduct to be proper, it is incumbent upon the court to correct this fundamental misunderstanding of an attorney’s obligations regarding the administration of justice. An attorney is duty-bound to zealously advocate for his or her clients, but that duty does not allow an attorney to selectively disregard the court’s rules of procedure in order to obtain a benefit not otherwise obtainable.
As explained above, the midtrial dismissal in this case resulted not from an erroneous district court ruling on the merits, but instead from defense counsel’s intentional and improper manipulation of the court proceedings by failing to challenge the defective complaint before trial, as required by court rule. Because the State conceded that it could only prove the facts alleged in the complaint and that, as a matter of law, those facts did not constitute first-degree “sexual contact with a person under 13 years of age,” Minn.Stat. § 609.342, subd. 1, there was no need for the court to make a ruling on the merits nor was there ever a risk that Sahr would be found guilty on the charged offense. Sahr seeks to avoid conviction and imprisonment by deliberately ignoring well-established procedural rules that are designed to ensure fair criminal proceedings.
When a defendant intentionally and improperly manipulates the court proceedings by failing to raise a known defect in the complaint before trial, as required by court rule, the principle underlying the statutory and state and federal constitutional double jeopardy protections is not implicated. Allowing further prosecution in such a case does not needlessly subject a defendant to embarrassment, expense, and ordeal, compel him to live in a continuing state of anxiety and insecurity, or enhance the possibility that, even though innocent, he may be found guilty. See Scott, 437 U.S. at 87, 98 S.Ct. 2187. Rather, it is the defendant’s intentional rule violation that artificially creates the double jeopardy issue.' To not allow further prosecution in such a case will encourage defendants to deliberately ignore well-established procedural rules that are designed to ensure fair criminal proceedings. Extending statutory and state and federal constitutional double jeopardy protections to defendants who *104deliberately fail to raise a known defect in the complaint before trial is not necessary to vindicate the principle underlying the double jeopardy protection. Instead, it will encourage defendants to deliberately violate the applicable rule and reward them for doing so. Consequently, I would reverse the district court’s denial of the State’s motion to file a new complaint.
III.
Additionally, I disagree with the majority’s conclusion that the district court’s dismissal constitutes a judgment of acquittal on the merits. Previously, in .State v. Large, we held that when a jury acquits on three of four charges of criminal sexual conduct, the district court’s dismissal of the remaining count amounts to a judgment of acquittal on the merits. 607 N.W.2d 774, 779-80 (Minn.2000). Consequently, we held that the district court’s ruling constituted an acquittal on the merits, which implicated double jeopardy principles and barred further prosecution. Id. at 780-81.
Here, unlike Large, the jury made no determination of guilt or innocence as to any charge. Moreover, the parties did not ask the district court to evaluate the State’s evidence and resolve a dispute regarding the evidence. Instead, there was no factual dispute regarding the bare genital-to-genital. contact, element of the charge for the ¡district court to resolve. Because the circumstances in Sahr’s case do not represent “ ‘a resolution [in the defendant’s favor] correct or not, of some or all of the factual elements of the offenses charged,’ ” see United States v. Scott, 487 U.S. 82, 97, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (alteration in original) (quoting United States v. Martin Linen Supply Co., 480 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)), I conclude that the district court’s dismissal order does not constitute an acquittal on the merits.
The circumstances in Sahr’s case are similar to State v. Holton, 88 Minn. 171, 92 N.W. 541 (1902). After the jury was sworn, Holton moved to dismiss the indictment, which charged the offense of larceny as a bailee, arguing that the indictment was defective because the name of the bailor was not alleged in the indictment. Id. at 172, 92 N.W. at 541. The district court dismissed the indictment and the State did riot present any evidence in support of the indictment. Id. at 172, 92 N.W. at 541. On appeal, we explained that a defendant’s acquittal “on the ground of a variance between the indictment and the proof, or ... upon an objection to its form or substance” does not constitute an acquittal on the merits.7 Id. at 174, 92 N.W. at 542. Because the indictment in Holton “was dismissed for a defect in substance, without any acquittal on the merits or otherwise,” we concluded that the dismissal did not support' a double jeopardy defense. Id. at 174, 92 N.W. at 542.
Several other jurisdictions have reached similar conclusions. See, e.g., People v. Berreth, 13 P.3d 1214, 1217 n. 2 (Colo.2000); State v. Keating, 223 Mo. 86, 122 S.W. 699, 701 (1909) (explaining that “[i]t is the accepted doctrine that, in order for a former trial and acquittal ... to be invoked on a plea of former jeopardy, it is essential thát the former ... trial must have been upon a sufficient indictment or information”); see also 1 .Charles E. Torcia, Wharton’s Criminal Law § 62 (15th ed.1993) (explaining that “[a]fter jeopardy has attached, the termination of the trial without a verdict is equivalent to an acquittal and is a bar to a subsequent prose*105cution for the same offense,” but such a termination does not bar a subsequent prosecution if it “was justified by manifest necessity, such as ... the dismissal of an indictment which is so defective that it could not have supported a judgment on the verdict” (footnote omitted) (internal quotation marks omitted)).
Like Holton, the district court’s midtrial dismissal of Sahr’s case was based on a defect in the charging document. Admittedly, the defect in Sahr’s case involved a variance in the charging document and the alleged proof, rather than an objection to the substance of the charging document, like the failure-to-state-a-public-offense claim asserted in Holton. Nevertheless, the principle underlying our analysis in Holton — that jeopardy does not attach unless there is a risk of a determination of guilt — applies with equal force to Sahr’s case. This is especially true when the State conceded that it could only prove the facts alleged in the probable cause section of the complaint, and as a matter of law those facts did not support the charged offense. Like the dismissal in Holton, the district court’s midtrial dismissal in Sahr’s case does not constitute an acquittal on the merits, and therefore does not support a double jeopardy defense.
Additionally, the United States Supreme Court in Scott noted that a district court’s characterization of its own action cannot control the classification of that action. 437 U.S. at 96-97, 98 S.Ct. 2187. More importantly, the Supreme Court concluded that “the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” Id. at 99, 98 S.Ct. 2187. Here, Sahr was not subject to government oppression. Rather, Sahr voluntarily chose to violate the rules by not disclosing a curable defect in the complaint. Sahr then brought an improper motion to dismiss that was really a motion for a mistrial. Under these circumstances, the district court’s action— however characterized by the district court — was in substance a declaration of mistrial, not • an acquittal on the merits.
IV.
In conclusion, I dissent for two reasons. First, Sahr’s deliberate failure to raise the known defect in the complaint, as required by well-established rules of criminal procedure, prevents Sahr from asserting the protections of Minn.Stat. § 609.04, and the Double Jeopardy Clauses. Second, even if Sahr’s deliberate behavior did not preclude the application of section 609.04, I do not accept the majority’s conclusion that a dismissal, based on the State’s concession that it lacks any evidence to prove a mistakenly charged offense, constitutes an acquittal on the merits.8 In either event, the *106district court committed reversible error when it reaffirmed its denial of the State’s motion to file a new complaint. Accordingly, I would affirm the court of appeals and conclude that double jeopardy does not bar retrial.
. Moreover, we have explained that a construction of Minn.Stat. § 631.21 (2010) (authorizing the district court to dismiss a complaint in the interests of justice) allowing dismissals that preclude further charges would arguably violate the separation1 of powers doctrine. State v. Streiff, 673 N.W.2d 831, 838 (Minn.2004).
. The district court erred when it denied the State’s motion to amend the complaint because second-degree criminal sexual conduct was a lesser-included offense and Minn. . R.Crim. P. 17.05 does not prohibit amendments that allege lesser-included offenses. See State v. Gisege, 561 N.W.2d 152, 157 (Minn.1997) (explaining that a trial court may instruct the jury to find the defendant guilty of any offense necessarily included in the offense with which the defendant is charged).
. In effect, defense counsel moved to dismiss the complaint in the interests of justice, even though section 631.21 does not authorize such a motion by the defense.
. The United States Supreme Court has also never considered the issue. See Serfass v. United States, 420 U.S. 377, 394, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (explaining that the Court did not "intimate any view concerning the case put by the Solicitor General, of 'a defendant who is afforded an opportunity to obtain a determination of a legal defense pri- or to trial and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense' ”); Sanabria v. United States, 437 U.S. 54, 77-78, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (explaining that Sanabria’s case did not present the issue reserved in Serfass because the motion in question did not involve a legal defense capable of being resolved before triál).
. The “failure of the ... complaint to chárge an offense” exception to Rule 10.01, subd. 2, does not apply in this case because Sahr does not contend that, if proven, the facts alleged in the complaint would not constitute a crime. See State v. McIntyre, 19 Minn. 93, 95 (Gil. 65, 66-67) (1872).
. Defense counsel’s deliberate manipulation of the court proceedings is evidenced in part by the unambiguous nature of the defect in the complaint. The record unequivocally shows the following. First, the complaint charged an offense requiring bare genital-to-genital contact, but the probable cause section of the complaint did not allege bare genital-to-genital contact and the State ■ had no evidence of bare genital-to-genital contact. Second, the language of the complaint cannot reasonably be interpreted as alleging bare genital-to-genital contact, especially when the alleged touching and rubbing of the victim’s *103vaginal area occurred "under her clothing.” The most reasonable reading of the complaint is that Sahr touched her vaginal area with his hand. Third, any arguable ambiguity in the language of the complaint was resolved by the State’s pretrial disclosure of the police reports and the CornerHouse interview, which did not allege any bare genital-to-genital contact. Fourth, defense counsel admitted that he knew at the time he read the, complaint that the complaint was defective because it charged the wrong offense. Fifth, defense counsel’s failure to raise the defect in a pretrial motion was a deliberate strategic decision — evidenced by his decision not to hire an expert witness or fully prepare for trial because he knew that Sahr was not "facing the right charge.” Sixth, defense counsel raised the defect in an in-chambers discussion immediately after the jury was sworn. And seventh, defense counsel’s motion — which he characterized as challenging the sufficiency of the State’s evidence — was by his own words a challenge that the charge in the complaint was "wrong” or "not valid.”
. We later applied the Holton analysis in a case involving a defective complaint. See State v. Gaulke, 281 Minn. 327, 328-29, 161 N.W.2d 662, 663 (1968).
. In my view, the concurrence rests on two flawed premises. First, it erroneously concludes that the district court's order constitutes a judgment of acquittal on the merits. If Sahr had been acquitted on the merits of the State’s case following a jury trial, as was the defendant in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), I would agree that Sahr is entitled to double jeopardy protection. But this is not that case. Instead, the district court dismissed the complaint upon the State’s concession that the facts alleged in the complaint did not support the charged offense. Simply stated, a dismissal pursuant to a stipulation is vastly different from a determination of innocence by the fact-finder. Our decision in Holton, 88 Minn. at 174, 92 N.W. at 542—holding that there is no final judgment of acquittal when a district court dismisses a charging document on the grounds of a variance between the charging document and the proof, or the document was otherwise dismissed upon an objection to its form or substance — is directly on point, and controls the outcome of this case. The concurrence concedes that my reliance on Holton is "not without merit,” but then suggests rather unpersuasively that the proce*106dural background of Holton makes it difficult to apply the Holton analysis to present day practice.
Second, the concurrence mistakenly concludes that defense counsel did not attempt to manipulate the judicial process. The tactics of defense counsel in this case are transparent and unmistakable. Specifically, counsel waited until the jury was sworn and double jeopardy attached, and then moved for dismissal on the basis of the defective complaint. It is not reasonable or plausible to conclude that defense counsel’s timing was accidental, or done on the spur of the moment. Instead, it was a strategic decision, and defendant should bear the consequences of that choice. Essentially, the concurrence ignores the rule violation of defense counsel-and implies that the "end” of defense counsel to obtain a dismissal of the complaint justifies the “means” employed even though it involves an intentional rule violation. Rather than clarifying the law, the concurrence undoubtedly encourages future rule violations by defense counsel to obtain a dismissal of a complaint, or other procedural advantage in complete disregard of the victim's right to a fair and just resolution of the case.
Additionally, the concurrence suggests that Rule 9.02, subd. 1(5) of the Minnesota Rules of Criminal Procedure, and not Rule 10.01, subd. 2, should apply in this case. The argument is without merit. Rule 9.02, subd. 1(5) governs a defendant’s obligation to provide discovery and clearly does not apply. The concurrence contends that if Rule 9 does not require disclosure, then a "defendant has no obligation to tell the State it cannot prove the crime charged.” This contention, however, fails to recognize that one of our other rules might create such an obligation. In fact, Rule 10.01 creates such an obligation. Rule 10.01, subd. 2, provides that defenses, objections, issues, or requests that can be determined without a trial on the merits must be made before trial by a motion to dismiss. Thus, Rule 10.01 is clearly applicable; and the rule provides that Sahr's failure to bring a motion to dismiss results in a waiver of the claim.