This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-241

 

 

State of Minnesota,

Respondent,

 

vs.

 

Nicholas Todd Hayes,

Appellant.

 

Filed November 6, 2001

Affirmed

Robert H. Schumacher, Judge

 

Stearns County District Court

File No. T2007251

 

 

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

 

Jan F. Petersen, St. Cloud City Attorney, Laura L. Gray, Assistant City Attorney, 400 Second Street South, St. Cloud, MN 56301 (for respondent)

 

Michael K. O'Tool, 18073 Bernard Trail, Brainerd, MN 56401; and

 

William F. Wielinski, Post Office Box 1657, St. Cloud, MN 56302 (for appellant)

 

Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.


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

ROBERT H. SCHUMACHER, Judge

Appellant Nicholas Todd Hayes challenges the constitutionality of the City of St. Cloud's unreasonable acceleration ordinance. Hayes contends that (1) the ordinance is unconstitutionally vague and was arbitrarily and discriminatorily enforced; (2) the ordinance denies his rights to presumption of innocence and a fair trial; and (3) the evidence does not support a guilty verdict. We affirm.

FACTS

On the early morning of June 3, 2000, St. Cloud police officer Kean Raygor was patrolling the intersection of Highway 23 and 16th Avenue in St. Cloud. Raygor observed a pickup truck traveling westbound on Highway 23. He then heard the vehicle's engine revving at high r.p.m.s. Raygor testified that immediately thereafter he heard a loud, distinctive squeal. Raygor stopped the vehicle and identified the driver as Hayes. Raygor testified that at this point Hayes admitted that he had probably pushed on the gas pedal too hard, thereby causing the tires to squeal. Raygor ran a driver's license check and learned that Hayes's license was suspended. Consequently, Raygor issued Hayes a ticket for unreasonable acceleration and driving after suspension.

Hayes argued before the district court that the unreasonable acceleration ordinance was unconstitutionally vague and was enforced in an arbitrary and discriminatory manner. Hayes also testified that his tires did not squeal, but instead the tires simply made a chirping sound, which was caused by a modification to his pickup's transmission. The district court held that the ordinance was not unconstitutionally vague or unconstitutionally enforced. The court found Hayes guilty of unreasonable acceleration and driving after suspension.

D E C I S I O N

1. Hayes contends that the district court incorrectly determined the ordinance's constitutionality. Ordinances, like statutes, are presumed valid and may not be found unconstitutional unless clearly invalid or shown beyond a reasonable doubt to violate the constitution. Essling v. Markman, 335 N.W.2d 237, 239 (Minn. 1983); State, City of Minneapolis v. Ellis, 441 N.W.2d 134, 136-37 (Minn. App. 1989), review denied (Minn. July 12, 1989). Evaluating an ordinance's constitutionality is a question of law. See Hamilton v. Comm'r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). Accordingly, "this court 'is not bound by the lower court's conclusions.'" In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993) (quoting Sherek v. Indep. Sch. Dist. No. 699, 449 N.W.2d 434, 436 (Minn. 1990)).

The ordinance states:

Unreasonable acceleration by any motor vehicle upon any public street, road, parking lot, or driving way within the corporate limits of the City of St. Cloud * * * is hereby declared to be a public nuisance and is prohibited.

 

St. Cloud, Minn., Mun. Code 100.15 subd. 8(2) (1977). Unreasonable acceleration is defined as

the acceleration or unnecessary exhibition of speed of a motor vehicle which reduces the normal rolling traction of a tire or tires on the driving surface, thereby causing them to emit a squealing or screeching sound, or causing the throwing of sand or gravel by the tire or tires of said vehicle or both.

 

Id. at subd. 8(1). The ordinance further provides that:

 

Prima facie evidence of such unreasonable acceleration shall be the squealing or screeching sounds by the tire or tires or the unnecessary throwing of sand or gravel by the tire or tires or both.

 

Id.

 

Hayes first attacks the constitutionality of the ordinance by arguing that it is unconstitutionally vague because it does not define "squealing or screeching." An ordinance providing for criminal prosecution must be drafted "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983); see also State v. Becker, 351 N.W.2d 923, 925 (Minn. 1984). A party challenging an ordinance on vagueness grounds must show that it lacks specificity as to his or her own behavior and not some hypothetical situation. City of Edina v. Dreher, 454 N.W.2d 621, 622 (Minn. App. 1990), review denied (Minn. June 15, 1990). An ordinance is unconstitutionally vague only if on its face it is so vague that persons of common intelligence have to guess at its meaning and differ as to its application. State v. Northwest Poultry & Egg Co., 203 Minn. 438, 440, 281 N.W. 753, 754 (1938). Absolute certainty is not required and it is unnecessary that there be mathematical precision in the statement of the conduct disapproved. State v. Suess, 236 Minn. 174, 180, 52 N.W.2d 409, 414 (1952). The ordinance, however, must be definite enough to guide the judge in its application and the attorney in defending a person charged with its violation. Id. at 179, 52 N.W.2d at 413.

The fact that the terms "squealing or screeching" are not defined is inconsequential. Common sense and the terms' general definitions give the average person adequate guidance as to what is prohibited. The American Heritage Dictionary defines "squeal" as a "loud, shrill cry or sound." The American Heritage Dictionary 1747 (3d ed. 1992). Likewise, "screech" is defined as a "high-pitched, strident cry." Id. at 1621. The definitions of these common terms are basic enough that a person of common intelligence should be fully aware of what is meant by prohibiting the screeching or squealing of tires. Former Minnesota Supreme Court Chief Justice Sheran, when deciding the constitutionality of a similar ordinance, eloquently framed the simple answer to this issue: "'[C]itizens who desire to obey the [ordinance] will have no difficulty in understanding it * * * .'" State v. Harris, 309 Minn. 395, 399, 244 N.W.2d 733, 736 (1976) (quoting Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957 (1972)).

Hayes focuses his unconstitutionality claims on the federal and state rights to due process and equal protection. While doing so, he asserts that cases like Harris offer no guidance to this court because the Minnesota Constitution provides more stringent protections in these areas, thereby making Harris, supposedly decided only under the United States Constitution, inapplicable to the case at issue. Hayes claims that under the due process and equal protection provisions of the Minnesota Constitution, an ordinance must (1) provide adequate distinctions separating those included from those excluded; (2) provide classifications that are genuine and relevant to the purpose of the law with a connection between the needs peculiar to the class and the prescribed remedy; and (3) pursue a legitimate purpose.

Even if these standards are applicable within the context of Hayes's vagueness and arbitrary enforcement claims, which is indeed questionable, the ordinance is still valid. The ordinance clearly states what causes a violation, there is a rational connection between the triggering conduct (squealing) and the conduct being prevented (unreasonable acceleration), and it serves a valid purpose by abating a nuisance. The ordinance here is not unconstitutionally vague.

2. Hayes also argues that the ordinance is unconstitutional because the ordinance's failure to define "squealing or screeching" results in arbitrary and discriminatory enforcement. An ordinance must "set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.'" Smith v. Goguen, 415 U.S. 566, 572-73, 94 S. Ct. 1242, 1247 (1974) (citations omitted). While a city may enforce an ordinance that reasonably specifies what conduct is prohibited, it may not enforce an ordinance "whose violation may entirely depend upon whether or not a [police officer] is annoyed." Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 1688 (1971).

Here, the terms "squealing or screeching" have specific, common definitions. The lay usage of these terms does not provide an officer much discretion in determining whether a violation has occurred. Violation of the ordinance does not depend entirely on an officer's threshold of annoyance with the sound. See Dreher, 454 N.W.2d at 623 (holding animal noise ordinance unconstitutional where compliance hinged on officer's personal sense of annoyance over sound of dog barking). Instead, quite simply, a squeal is a squeal. The ordinance was not discriminatorily enforced, nor does it allow or invite arbitrary and discriminatory enforcement.

3. Hayes further argues that the ordinance denies his rights to presumption of innocence and a fair trial. He conceded at oral argument that this issue was not raised before the district court; we, therefore, decline to consider the matter. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that court will generally not consider matters not argued and considered in district court).

4. Finally, Hayes argues that the evidence does not support the district court's guilty verdict. In considering a claim of insufficient evidence, a court's review "is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction," sufficiently supports the fact-finder's verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must ascertain whether the trier of fact could reasonably find the defendant guilty on the evidence received at trial and on the legitimate inferences that could be drawn from that evidence. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).

Viewing the evidence in the light most favorable to Hayes's conviction, there was sufficient evidence to support the district court's determination. Raygor was patrolling near the area in which Hayes was travelling and testified that he heard a loud, distinctive squeal caused by the pickup truck Hayes was driving. While Hayes offered contradicting testimony, the district court accepted Raygor's testimony.

Affirmed.