This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Scott L. Sorenson,
Filed June 7, 2007
Hennepin County District Court
File No. 05-063031
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Steven M. Tallen, Tallen &
Baertschi, 4560 IDS Center,
Scott J. Strouts, 1008 Plymouth Building, 12 South Sixth Street, Minneapolis, MN 55402; and Larry G. Rapoport, Rapoport-Desmidt Law Offices, 3001 Hennepin Avenue South, Suite 309B, Minneapolis, MN 55408 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of violating a Lake Minnetonka Conservation District ordinance that prohibits keeping more than two restricted watercraft at a dock, arguing that the evidence was insufficient to support his conviction. We reverse.
Lake Minnetonka Conservation District (LMCD) was created by the legislature to
manage the surface use of
On December 15, 2005, Sorenson was charged with violating Lake Minnetonka Conservation District, Code of Ordinances § 2.02, subds. 3(c), (4) (1995), for keeping more than two restricted watercraft at a dock or mooring facility on a residential site without obtaining a license or permit. Appearing pro se, Sorenson waived his right to a jury trial. At the bench trial, the state offered the testimony of the executive director and David Meyer, who owns one of the boats that was photographed at Sorenson’s dock and who testified that he pays Sorenson $5,000 a year to moor his boat at the dock.
Sorenson testified that before August 5, only two boats were moored at the dock—Sorenson’s own boat and Meyer’s—but that he had allowed the owner of the third boat “to use the dock for a few weeks.” Sorenson testified that the owner would “go out in the water, stay out in the water, come back” and that, therefore, “[h]e was not [moored at the dock] all the time.” In addition to his own testimony, Sorenson called a friend of the owner of the third boat, who testified that the third boat was moored at Sorenson’s dock only when the owner of the boat “decided to . . . come back into town” but that it was otherwise on the water.
The district court convicted Sorenson of violating the ordinance and imposed a $1,000 fine but stayed $500 for a year on the condition that Sorenson commit no same or similar offenses. This appeal follows.
D E C I S I O N
argues that the evidence is insufficient to support his conviction because
there is no evidence that the third boat was regularly moored at his dock. When considering a claim that the
evidence was insufficient to support a conviction, this court painstakingly
reviews the record to determine whether the evidence, when viewed in a light
most favorable to the verdict, permitted the fact-finder to find the defendant
guilty. State v. Webb, 440 N.W.2d 426, 430 (
argues that section 2.02 of the LMCD Code of Ordinances is ambiguous and that
the district court erred by interpreting the ordinance to prohibit the
intermittent use of a dock by a guest. The
interpretation of an ordinance is a question of law, which we review de novo. Frank’s
Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (
if the text of an ordinance is ambiguous, we attempt to ascertain and
effectuate the legislative body’s intent. See id. And under the rule of lenity, an ambiguous
criminal law is construed narrowly. State v. Zeimet, 696 N.W.2d 791, 794 (
Lake Minnetonka Conservation District is empowered by statute to adopt
ordinances to effectuate the powers granted to it. Minn. Stat. § 103B.641, subd. 1(a), (b)
(2006). A violation of an ordinance is a
argues that to keep a restricted watercraft means that it must be moored at the
dock for “an appreciable period of time for future use,” which would not
prevent the intermittent use of the dock by a guest. We conclude that the term “kept at” makes section
2.02 ambiguous. The ordinance does not
define “kept.” When an ordinance fails to
define a term, we construe that term according to its “plain and ordinary
meaning.” See Am. Tower, L.P. v. City
of Grant, 636 N.W.2d 309, 312 (
As noted above, we must construe an ambiguous criminal law narrowly. Zeimet, 696 N.W.2d at 794. We therefore conclude that the intermittent or periodic mooring of a restricted watercraft does not constitute customarily storing it at a dock, and a guest’s intermittent use of a dock is not a violation of the ordinance. Indeed, the LMCD’s executive director testified at trial that although he believed that a “true application” of the ordinance would not permit any more than two restricted watercraft at any time, “common sense” dictates that “if somebody decides to come and visit over night there and store their boat there, . . . [the LMCD would] allow the boat to [stay] there.”
The evidence at trial regarding the third boat consisted solely of the executive director’s testimony that he had photographed the same three boats moored at Sorenson’s dock on three occasions during a 15-day period. But this circumstantial evidence does not exclude beyond a reasonable doubt the possibility that the third boat was only intermittently at the dock. See Jones, 516 N.W.2d at 549 (noting that convictions based solely on circumstantial evidence are upheld only if the evidence compels a conclusion of guilt and excludes all other conclusions beyond a reasonable doubt). Thus, the evidence is insufficient as a matter of law to support Sorenson’s conviction, and we reverse that conviction.
 Sorenson argues that there is no evidence of the size and horsepower of the boats. Under the ordinance, a “restricted watercraft” is any motorized craft greater than 16 feet in length, any motorized craft less than 16 feet in length that uses a ten-horsepower or greater motor, or any unmotorized watercraft greater than 20 feet in length. Lake Minnetonka Conservation District, Code of Ordinances § 1.02, subds. 41, 55c (1978). Sorenson is mistaken: the boat registrations indicate that one of the boats is 26 feet long and two are 27 and a half feet long. Thus, there is sufficient evidence to support the district court’s conclusion that all three boats here fit within the definition of “restricted watercraft.”
 Sorenson also challenges his sentence. A misdemeanor sentence is not appealable as a matter of right, and Sorenson has not filed a petition for discretionary review in this court. See Minn. R. Crim. P. 28.02, subd. 2(3). But because we have reversed his conviction, we need not reach this issue.