This opinion will be unpublished and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
State of Minnesota,
City of Moorhead,
Carol Jean Peddycoart,
Filed April 2, 2002
Clay County District Court
File No. T2-01-2277
Michael Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Lisa N. Borgen, Clay County Attorney, Pamela L. Harris, Assistant County Attorney, 807 North Eleventh Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondents)
Kenneth J. Kludt, 1001 Center Avenue, Suite C, P.O. Box 1065, Moorhead, MN 56561-1065 (for appellant)
Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.
Appellant challenges her conviction of failing to stop for a school bus signal arm arguing that she was denied her right to a jury trial when the charge was improperly certified as a petty misdemeanor. She also claims that there was insufficient evidence to support the conviction and that the district court erred by excluding her character witness. We affirm.
A Moorhead school bus driver notified the Moorhead police department regarding a school bus stop arm violation by appellant Carol Jean Peddycoart. The driver reported that appellant drove through the stop arm while its lights were flashing and children were exiting the bus. Officer Kent McCullough issued appellant a gross misdemeanor citation for proceeding through a school bus stop signal while children were getting off. See Minn. Stat. § 169.444, subd. 2(b)(2) (2000).
Later, after visiting the scene of the incident, McCullough noted that it would have been difficult for appellant to see the school bus lights or stop arm. McCullough conferred with the Moorhead city prosecutor, voided the first citation, and reissued appellant a petty misdemeanor citation for owning a vehicle that proceeded through a school bus stop arm. See Minn. Stat. § 169.444, subd. 6 (a) (2000). Only the second citation was filed with the district court.
At appellant’s arraignment, the court clerk mistakenly told the district court that the offense was a misdemeanor, rather than a petty misdemeanor; the court set the case for a jury trial. The case was later removed from the jury trial calendar and set for a bench trial.
At the bench trial, appellant and Joyce Gebhard, her passenger, testified that appellant came to a complete stop before making a right hand turn. They also testified they did not see the school bus lights or stop arm and waited for the children to walk down the street before turning. The driver testified that he had activated the bus signal lights and stop arm. On cross-examination, he admitted he could not recall the entire incident, but maintained that his testimony was consistent with a report he made soon after the incident.
Appellant sought to call Pastor Dan Forsberg to testify to her “veracity and honesty.” Noting that appellant was not charged with an intent crime, the district court did not allow this testimony. The district court found appellant guilty of a petty misdemeanor. This appeal followed.
1. Right to a Jury Trial
The Minnesota Constitution guarantees that “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury.” Minn. Const. art. I, § 6. A crime is defined as conduct for which the defendant may be punished by incarceration. Minn. Stat. § 609.02, subd. 1 (2000). Because a petty misdemeanor cannot be punished by incarceration, it is not considered a crime and does not trigger the right to a jury trial. See Minn. Stat. § 609.02, subd. 4a (2000); State v. Weltzin, 630 N.W.2d 406, 410-11 (Minn. 2001).
Appellant argues that she was denied her right to a jury trial because the officer did not properly certify her offense as a petty misdemeanor pursuant to Minn. R. Crim. P. 23.04 (2000). The rule states that
[i]f at or before the time of arraignment or trial on an alleged misdemeanor violation, the prosecuting attorney certifies to the court that in the prosecuting attorney’s opinion it is in the interests of justice that the defendant not be incarcerated if convicted, the alleged offense shall be treated as a petty misdemeanor if the defendant consents and the court approves.
Caselaw holds that criminal prosecution begins by filing a complaint with the court, not by issuing a complaint to the alleged offender. See e.g., State v. Sater, 588 N.W.2d 512, 514 (Minn. App. 1998) (filing of complaint begins prosecution), review denied (Minn. Feb. 18, 1999); State v. Favors, 482 N.W.2d 226, 227 (Minn. App. 1992) (filing a complaint begins prosecution for purposes of statute of limitations period), review denied (Minn. Mar. 26, 1992). Because the first citation (gross misdemeanor) had not been filed with the court, formal prosecution had not commenced and appellant was not charged with a violation until the second citation (petty misdemeanor) was filed.
Minn. R. Crim. P. 23.04 states that “the defendant” must consent for a misdemeanor offense to be certified as a petty misdemeanor. Under these facts, when the second citation was issued, appellant was not yet a defendant. Accordingly, Rule 23.04 did not apply and appellant’s violation was properly treated as a petty misdemeanor from the inception of the prosecution.
Appellant also argues that she was denied her right to a jury trial because the case was set for a jury trial at her arraignment. The only citation filed with the district court was for a petty misdemeanor. The prosecutor determines what charge to file. See State v. Johnson, 514 N.W.2d 551, 556 (Minn. 1994). Although there might have been confusion at appellant’s arraignment over the exact charge, this confusion was corrected and did not give appellant the right to a jury trial for the petty misdemeanor charge brought against her. We note that appellant never objected to a bench trial either immediately before or during the trial.
2. Evidentiary Ruling: Character Evidence
Appellant attempted to call Pastor Forsberg as a witness to testify “to the veracity and honesty of [appellant and Gebhard].” The district court denied this request. Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).
Character evidence “is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:”
(1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
* * *
(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
Minn. R. Evid. 404 (a) (2000).
To be admissible under Rule 404 (a) (1), the character evidence must be relevant to the charged offense. See State v. Miller, 396 N.W.2d 903, 906 (Minn. App. 1986) (only aspects of an accused’s character which are “involved in the offense charged” are within the scope of Rule 404 (a) (1)). Appellant was charged with violating Minn. Stat. § 169.444, subd. 6 (a), which provides that
[i]f a motor vehicle is operated in violation of subd. 1 [driving through a school bus stop arm], * * * the owner of the vehicle * * * is guilty of a petty misdemeanor.
Evidence of appellant’s honesty and veracity is not a “pertinent” character trait for this violation.
Evidence concerning the character of a witness can be offered only through Rules 607, 608, and 609. Minn. R. Evid. 404 (a)(3). Evidence of
truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Minn. R. Evid. 608 (a) (2000).
The prosecution called a witness whose testimony differed from that of appellant and Gebhard. The prosecution did not attack or even refer to appellant’s or Gebhard’s character for truthfulness. The district court was required to determine the credibility of the witnesses, but this determination is necessary in every case where witnesses give contradictory testimony.
The district court did not abuse its discretion in excluding this testimony.
3. Sufficiency of the Evidence
In a trial before a judge,
[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses.
Minn. R. Civ. P. 52.01 (2000). In applying this rule, appellate courts “view the record in the light most favorable to the judgment of the district court.” Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (citation omitted).
The bus driver, Gebhard, and appellant gave generally similar testimony. All agreed on the positions of the vehicles, that appellant made a right turn, and that children were unloading. But they disagreed about whether the driver had activated the school bus arm and lights and how long appellant waited before proceeding. On cross-examination, the bus driver admitted that he was testifying to his “best recollection” and was relying on a report he made after the incident when “it was fresh in [his] head.”
A writing may be used to refresh memory before or during testimony. Minn. R. Evid. 612 (2000). This rule does not state that the party using the writing must produce it or admit it into evidence unless at the adverse party’s request. See id. (adverse party is entitled to have the writing produced at the hearing and introduce it into evidence). Appellant did not request that the driver’s report be admitted. Nor did she object to the driver’s testimony or his reliance on his report. The driver’s reliance on his report did not invalidate his testimony, but became a factor to be used by the trier of fact to determine his credibility. See Park Hill Apartments v. Anderson, 409 N.W.2d 924, 925 (Minn. App. 1987) (trier of fact determines witness credibility). The district court chose to credit the bus driver’s testimony over that of appellant and Gebhard. It is not our function to second-guess a trial court’s findings as to weight and credibility of testimony. See Braith v. Fischer, 632 N.W.2d 716, 724 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).
We conclude that when viewing the record in the light most favorable to the district court findings, there was sufficient evidence to support the conviction.