This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1855

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mark Carl Peterson,

Appellant.

 

 

Filed November 2, 2004

Affirmed

Robert H. Schumacher, Judge

 

Freeborn County District Court

File No. T4031085

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Steven R. Schwab, Albert Lea City Attorney, 221 East Clark Street, Albert Lea, MN 56007 (for respondent)

 

Randall D.B. Tigue, Randall Tigue Law Office, P.A., 3960 Minnehaha Avenue South, Minneapolis, MN 55406 (for appellant)

 

 

Considered and decided by Halbrooks, 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 Mark Carl Peterson challenges his conviction and fine for driving a vehicle equipped with prohibited lights, arguing the district court erred by concluding his conduct was prohibited by the statute under which he was charged and the court abused its discretion by excluding evidence Peterson was selectively prosecuted for exercising his right to free speech. We affirm.

FACTS

The facts of this matter are undisputed. Early in the evening of March 19, 2003, an Albert Lea police officer observed a pickup truck driving through Albert Lea and pulling a trailer containing a bright, yellow illuminated sign with black letters. The sign measured approximately 8 feet by 20 feet and was lit from within by ten 8-foot-long, 60-watt fluorescent bulbs. The officer stopped the truck and informed Peterson, who was driving the pickup, that the illuminated sign was illegal and that Peterson should turn the sign off, which he did. Later the same evening, the officer again observed the truck driving around Albert Lea with the sign lit. The officer stopped the truck and again informed Peterson to turn off the sign. When Peterson refused, the officer issued him a ticket for violating Minn. Stat. 169.64, subd. 2 (2002).

The officer who issued the ticket testified at trial. During cross-examination, the district court excluded as irrelevant a question posed by Peterson's counsel concerning the message on the sign on the evening the ticket was issued. The court then allowed defense counsel to make an offer of proof that Peterson had been freely driving the sign around Albert Lea for months "if not years," but that the police paid no attention until its messages became critical of local government figures. Peterson's counsel argued the police, in ticketing Peterson, were not making "a good faith effort to enforce a traffic law but . . . [were] attempt[ing] to silence a message."

Peterson called an electrician employed by the company from whom he rented the sign to give expert testimony that the sign creates a "dull light" that causes less of a traffic distraction than a "headlight." The district court again refused to allow Peterson's counsel to ask questions about the message on the sign. The court found Peterson guilty as charged. This appeal follows.

D E C I S I O N

Because the state did not file a brief, this matter proceeds on the merits pursuant to Minn. R. Civ. App. P. 142.03.

1. Peterson argues the district court erred in finding him guilty because his conduct did not violate Minn. Stat. 169.64, subd. 2 (2002), which provides: "Unless otherwise authorized by the commissioner of public safety, no vehicle shall be equipped, nor shall any person drive or move any vehicle or equipment upon any highway with any lamp or device displaying a red light or any colored light other than those required or permitted in this chapter." The applicability of a statute to undisputed facts presents a question of law, which we review de novo. O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).

Peterson contends because the light emanating from the sign was diffused by the yellow plastic outer cover, the sign sent "no light whatsoever onto the roadway" and does not create the type of hazard prohibited by the statute, whose purpose, according to Peterson, is "to prevent bright colored lights flashing onto the roadway." But the statute prohibits driving a vehicle "displaying . . . any [unauthorized] colored light." It does not limit the prohibition to bright lamps or devices or create an exception for dim light sources. We further observe Minn. Stat. 169.64, subd. 1 (2002), immediately preceding the section under which Peterson was charged, specifically prohibits vehicles from projecting a "bright light"; if subdivision 2 were only intended to prohibit bright lights, it would be rendered superfluous by subdivision 1.

Peterson also argues that "the construction of the statute urged by the state" leads to an absurd result by positing that an illuminated sign with a yellow plastic background is prohibited by the statute while the same sign would be allowed if the background were transparent "with no color whatsoever." In support, Peterson relies upon his own expert's testimony that a transparent background would project a more intense light than a yellow background and would therefore more closely represent the type of hazard prohibited by the statute.

We disagree. First, there is no record evidence indicating the state or its witness argued a transparent sign would be permitted under the statute. Peterson's argument concerning the state's construction of the statute is based upon the testimony of the ticketing officer, who stated he cited Peterson because his vehicle was equipped with a "bright, yellow lighted sign." The officer was not asked and did not speculate about whether he would have cited Peterson had the sign been transparent. The district court correctly concluded Peterson committed the offense prohibited by Minn. Stat. 169.64, subd. 2.

2. Peterson challenges the district court's exclusion of evidence offered in support of his selective-prosecution defense as irrelevant and the court's refusal to consider his offer of proof that the police ignored his sign until its message became critical of local government officials. He maintains his citation was a content-based attempt to silence protected speech rather than to enforce a traffic law. The district court has wide discretion in determining both relevance and the sufficiency of offers of proof. See State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989) (relevance); State v. Kasper, 409 N.W.2d 846, 847-48 (Minn. 1987) (offers of proof).

Even were we to assume the relevance of evidence of the sign's content, we must conclude Peterson's offer of proof was wholly insufficient to support his allegation of selective prosecution. To prove selective prosecution, Peterson bears the "heavy burden" of establishing the government has invidiously singled him out for prosecution in order to prevent "his exercise of [a] constitutional right." State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984) (quotation omitted). An offer of proof is adequate only "if it is sufficiently specific and there is nothing in the record to indicate a want of good faith or inability to produce the proof." Santiago v. State, 644 N.W.2d 425, 442 (Minn. 2002) (quotation omitted); In re Welfare of W.J.R., 264 N.W.2d 391, 394 (Minn. 1978) (requiring some specifics in offer of proof beyond conclusory characterization of evidence offered).

Here, Peterson's offer of proof consisted of a bare assertion that unspecified witnesses would testify that his prosecution was motivated by the content of his sign. Peterson's counsel did not identify any specific witnesses that needed to be obtained, indicate that he had contacted any witnesses, identify other similarly situated people who had not been prosecuted for similar offenses, or suggest any evidence that Peterson's prosecution was attributable to bad faith on the part of the police. The district court properly rejected the offer of proof. See State v. Vaughn, 361 N.W.2d 54, 58 (Minn. 1985) (excluding a "vague" offer of proof because, among other reasons, defense counsel had not consulted with witnesses he intended to call); J.N. Sullivan & Assocs., Inc. v. F.D. Chapman Constr. Co., 304 Minn. 334, 338, 231 N.W.2d 87, 90 (1975) (stating that when the offer of proof fails to indicate that the proffered evidence can withstand a threshold inquiry as to substantiation or specificity, the district court has discretion to reject the evidence).

Affirmed.