This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,


Gary Leo Schmitt,


Filed March 13, 2001

Affirmed in part, reversed in part

Crippen, Judge

Concurring in part, dissenting in part, Kalitowski, Judge


Nobles County District Court

File No. T3992701



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Ken Kohler, Nobles County Attorney, Kathleen A. Kusz, Assistant County Attorney, Third Avenue, P.O. Box 607, Worthington, MN 56187 (for respondent)


Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000 Circle K, Box 216, Shakopee, MN 55379 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Crippen, Judge.

U N P U B L I S H E D    O P I N I O N


            Appellant Gary Schmitt, convicted of an open-bottle violation, contends that the trial court offended statutory law that “[a] confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed.”  Also, respecting his conviction for violating a driver’s license restriction, appellant contends that the state did not provide sufficient evidence to show he had notice that he could not consume alcohol or that consumption would be a criminal offense.  Finding adequate evidence to show the trustworthiness of appellant’s confession, we affirm the open-bottle conviction.  Because inadequate evidence was furnished on notice to appellant of his license restrictions, we reverse the related conviction.


In October 1999, a police officer stopped appellant for driving 65 m.p.h. in a 55 m.p.h. zone.  When the officer approached appellant’s car, he smelled alcohol. The officer asked appellant to come to the squad car, where appellant eventually admitted consuming alcohol and throwing his open bottle out the window when he saw the officer.  When the officer checked appellant’s license, a police dispatcher reported that the commissioner of public safety imposed the following restriction on appellant’s license: “Any use of alcohol or drugs invalidates license.”  After a bench trial on open-bottle and restriction-violation charges, the court found appellant guilty of violating both statutes. 

The officer never saw an open bottle and failed to retrieve the discarded beer can.  Without this evidence, appellant asserts that the state cannot prove that an open-bottle violation occurred.  The officer did search appellant’s car and found a cooler with four unopened cans of beer.

To show that appellant had notice of the restrictions on his license, the state produced certified copies of appellant’s “Statement Attesting to Abstinence From Alcohol and Controlled Substances” and his driving record. 

Appellant did not testify and does not allege that his confession was coerced. 



               For a claim of insufficient evidence, we view the evidence in the light most favorable to the state and assume that the factfinder, acting with due regard to the state’s burden to prove guilt beyond a reasonable doubt, believed the state’s witnesses and disbelieved contrary evidence.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  We must affirm the verdict if it represents a reasonable conclusion.  Id.  Corroborating evidence, also viewed in the light most favorable to the verdict, may be either circumstantial or direct.  State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995).

1.         Open-Bottle Conviction

               Appellant contends that his statement to the officer, admitting that he consumed alcohol in his car and that he threw the open beer can out the window when he saw the flashing lights of the officer’s car, is not sufficient to sustain an open-bottle conviction.  See Minn. Stat. § 169.122 (1998) (prohibiting “drink[ing] or consum[ing] intoxicating liquors or 3.2 percent malt liquors in any motor vehicle when such vehicle is upon a public highway” or possession of a bottle containing liquor).[1]  

               In proving the case, “[a] confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed.”  Minn. Stat. § 634.03 (2000); see also In re Welfare of M.D.S., 345 N.W.2d 723, 735 (Minn. 1984).  The statute “discourages coercively acquired confessions and makes the admission reliable.”  In re Welfare of M.D.S., 345 N.W.2d at 735 (citation omitted).  Another basis for this requirement “lies * * * in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused.”  Smith v. United States, 348 U.S. 147, 153, 75 S. Ct. 194, 197 (1954). 

               As respondent and the trial court noted, the independent evidence need not establish beyond a reasonable doubt that the offense charged has been committed, nor does each element of the offense need independent corroboration; instead, the statute requires only that the elements be “sufficiently substantiated by independent evidence of attending facts or circumstances from which the jury may infer the trustworthiness of the confession.”  In re Welfare of M.D.S., 345 N.W.2d at 735 (quotation omitted).  If the independent evidence sufficiently bolsters the confession, the state can then prove the offense “through” the defendant’s statement:

All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense “through” the statements of the accused.


Smith, 348 U.S. at 156, 75 S. Ct. at 199 (citation omitted).  The production of evidence in this case suggests that the diligence required in police investigation of a suspected criminal offense did not occur.  But appellant’s statement is sufficiently corroborated by a thin reed of independent evidence that permitted the trial court to infer the statement’s truthfulness.

               Appellant argues that the independent evidence offered by the state is not sufficient to corroborate his statement because it is ambiguous.  See State v. Sellers, 507 N.W.2d 235, 236 (Minn. 1993) (finding corroborating evidence ambiguous and therefore insufficient to sustain the conviction).  In the Sellers case, there was no independent evidence of surrounding facts and circumstances presented to verify the defendant’s factual statements, and the defendant disputed the animal-control officer’s testimony that he admitted keeping ferrets without a permit.  Id. at 235-36.  The only other evidence presented in Sellers was the defendant’s refusal to consent to a search, which the court found ambiguous because he had a constitutional right to refuse the search.  Id. at 236.

               Unlike the Sellers case, the state established the trustworthiness of appellant’s confession by presenting independent evidence to prove auxiliary facts in the statement. See State v. Kerkhoff, 377 N.W.2d 81, 82 (Minn. App. 1985) (finding defendant’s statement that he drove the car adequately corroborated by the fact that the motor vehicle was on a public highway and someone must have driven it there, and sufficient to convict the defendant of driving after revocation because his license had in fact been revoked).  Appellant did not deny stating that he had been drinking and had thrown an open bottle out of the window, but stipulated to the statement.  The state corroborated the part of his statement admitting that he had been drinking by the officer’s testimony that appellant smelled of beer and with the results of a preliminary breath test, which confirmed that appellant had been drinking.  Also, as the trial court noted, the officer found four beer cans, which are usually sold in multiples of six, within appellant’s reach as he drove; these facts increase the likelihood that appellant told the truth about throwing an open beer can out the window because he had easy access to the beer.  Although the independent evidence does not show the existence of the open-bottle crime, the evidence sufficiently justifies the inference that appellant’s statement was true.  In viewing the evidence in the light most favorable to the verdict, the trial court properly convicted appellant on the open-bottle charge because the state proved the offense through his statements.

2.         Notice

            Appellant also challenges the sufficiency of the evidence to prove that he had notice of the restrictions on his driver’s license in order to be found guilty of Minn. Stat. § 171.09(b) (2000) (covering violations of the restrictions).  The legislature has removed the subject of intent as an element of driving after revocation, suspension, cancellation, or disqualification but has not eliminated the intent element for the offense of violating restrictions.  Compare Minn. Stat. § 171.241 (2000) (“It is a misdemeanor for any person to willfully violate any of the provisions of this chapter unless the violation is declared by any law to be a felony or gross misdemeanor * * *.”), with Minn. Stat. § 171.24 (2000), and 1984 Minn. Laws ch. 622, § 17 (eliminating “willful” language).

            The trial court found that appellant’s driving record provides notice because it states “any use of alcohol or drugs invalidates license.”  This court has found that “B card” restrictions stating “any use of alcohol or drugs invalidates license” provide sufficient notice “as to what is prohibited and the consequences of violating the restrictions” and “are not void for uncertainty.”  State v. Tofte, 563 N.W.2d 322, 325 (Minn. App. 1997).  The administrative regulations require that the “restriction must be placed on the person’s driver’s license and driving record.”  Minn. R. 7503.1700, subp. 4 (1999).       

            Although the restrictions appear on appellant’s driving record, the state provided no evidence that appellant ever saw his driving record.  Neither respondent nor the trial court cite any authority, and we find none, for the proposition that the driving record by itself provides adequate notice.  Also, it is not clear from the record that the commissioner ever issued appellant a “B card” or that his driver’s license indicated the existence of a “B card.”  In fact, the record shows that the officer did not discover the restrictions from looking at appellant’s license, but found out about them when he checked with dispatch and dispatch reported back.  We therefore reverse the conviction for violating a driver’s license restriction because the state failed to prove that appellant had notice of the restrictions. 

            Respondent contends, in the alternative, that appellant’s “Statement Attesting to Abstinence From Alcohol and Controlled Substances,” produced by the state, was self-authenticating.  The trial court determined that this document did not prove the occurrence of notice because there was no evidence that the purported signatures of appellant on the document were actually his or that the purported attestation to these signatures (by “M. McKee”) was made by a representative of the commissioner or a notary public.  Under Minn. Stat. § 600.13 (2000), a probative record is one “made by any public officer”; as the trial court determined, the document provided in this instance contained no evidence that the person signing as an attesting witness was a public official. The document is evidently a printed form of the Department of Public Safety and is signed on a line intended for a notary public or a department representative; but, as the trial court observed, there is no showing, in the document or otherwise, that the signature appearing as an attestation to other signatures on the document is either a notary public or a department representative.[2] 

            Similarly, a self-authenticating document under Minn. R. Evid. 902(4) is one that is “certified as correct by the custodian or other person authorized to make the certification.”  The document in question contains no certification of authenticity and contains no information to permit a judgment that it contains signatures of appellant or an authentic attestation of those signatures.  The trial court did not err in finding the Statement Attesting to Abstinence From Alcohol and Controlled Substances failed to prove notice.

            Official records or reports are admissible under the public-records exception to the hearsay rule unless“the sources of information or other circumstances indicate lack of trustworthiness.”  Minn. R. Evid. 803(8).  The burden of proof on the reliability of this statement rested with the state.  The trial court did not clearly abuse its discretion by concluding, on the evidence produced, that “anyone” could have made the signatures attributed to appellant.  See Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (“Evidentiary rulings concerning materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence are within the trial court’s sound discretion and will only be reversed when that discretion has been clearly abused.” (quotation omitted)). 

            Appellant also contends he did not have notice that consuming alcohol would result in a criminal offense and cites Moseng for the proposition that “acts otherwise either innocent or lawful do not become crimes unless there is a clear and positive expression of the legislative intent to make them criminal.”  State v. Moseng, 254 Minn. 263, 268, 95 N.W.2d 6, 11 (1959).  Because we find that the state did not provide adequate evidence that appellant had notice of the restriction we need not address this proposition, but note that this court has found that the legislature clearly and positively expressed its intent to make violating restrictions imposed on a driver’s license a misdemeanor.  See Tofte, 563 N.W.2d at 324.

            Affirmed in part and reversed in part.



KALITOWSKI, Judge (concurring in part, dissenting in part)


            I concur that there is sufficient independent evidence in the record to support the district court’s determination that appellant’s confession was trustworthy.  But I disagree with the conclusion that the evidence is not sufficient to establish that appellant had notice of the restrictions on his driver’s license.

            The district court made the permissible inference that because appellant’s driving record clearly forbids any use of alcohol, appellant had sufficient notice of the restrictions.  This inference was directly supported by the state’s introduction of a “Statement Attesting to Abstinence From Alcohol and Controlled Substances” purportedly signed and initialed in four places by appellant.  This statement was admitted into evidence over appellant’s objection but not relied on by the district court because it was not authenticated by the person who purportedly witnessed appellant’s signature.  But under Minnesota Rule of Evidence 902(4), the document was self-authenticating as an official record or report.  Moreover, because appellant presented neither evidence nor argument that he did not sign the statement or that the statement otherwise lacked trustworthiness, the statement was not excludable as hearsay, even absent testimony by the witness.  Minn. R. Evid. 803(8).  I would affirm appellant’s conviction of driving in violation of a restricted driver’s license.



[1] The statute provides:

No person shall have in possession while in a private motor vehicle upon a public highway, any bottle or receptacle containing intoxicating liquor or 3.2 percent malt liquor which has been opened, or the seal broken, or the contents of which have been partially removed.

Minn. Stat. § 169.122 (1998).  Recodified and slightly altered, the statute now states:

It is a crime for a person to drink or consume an alcoholic beverage, distilled spirit, or 3.2 percent malt liquor in a motor vehicle when the vehicle is upon a street or highway.

Minn. Stat. § 169A.35, subd. 2 (2000).  The new statute also prohibits possession of

any bottle or receptacle containing an alcoholic beverage, distilled spirit, or 3.2 percent malt liquor that has been opened, or the seal broken, or the contents of which have been partially removed.

Id., subd. 3.

[2] Appellant argues that “[i]n order for the state to prove notice, the state needed to call M. McKee as a witness and have M. McKee testify he checked Gary Leo Schmitt’s identification and it matched the individual who signed the abstinence agreement, or, that he remembered the incident and Gary Leo Schmitt was sitting at counsel table.”  As indicated in our discussion of the statute and rule governing proof of signatures on a document of this kind, appellant is in error in suggesting that the state could not meet its burden of proof without producing the purported attesting witness for trial testimony.