This opinion will be unpublished and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
State of Minnesota,
John Kenneth Jensen,
Filed July 3, 2007
Big Stone County District Court
File No. T4-06-20
Swanson, Attorney General, 1800
Watson, Big Stone County Attorney, 37 Northwest Second Street,
Peterson, Peterson Law Office, P.A.,
Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Collins, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of operating an all-terrain vehicle (ATV) within the boundaries of a state wildlife-management area, appellant-landowner argues that (1) the state failed to prove that the area of the frozen lake where he drove the ATV was within the wildlife-management area; (2) the district court exceeded its role as neutral fact-finder, and violated appellant’s constitutional rights, by soliciting ex parte information from the state on this issue; (3) wildlife-management regulations governing the use of ATVs could not be enforced on appellant’s private land; (4) the state failed to prove that the area was posted as required to notify users that access was restricted to minimize disturbance of wildlife; and (5) he has riparian rights to the lake and, therefore, cannot be charged with a restricted-access violation. We affirm.
John Kenneth Jensen lives on a lakeshore lot on Marsh Lake. On January 14, 2006, State of
Henriksen testified at trial that
In response to the district court’s request, the state submitted the following documents after trial: a map of Lac qui Parle WMA; copies of Minn. Stat. §§ 84.154, 86A.09 (2004); excerpts from the Lac qui Parle WMA master plan; and an e-mail from a staff person at the department of natural resources that described the documents.
The district court found appellant guilty as charged and sentenced him to pay a fine. This direct appeal challenging the conviction followed.
D E C I S I O N
This court applies the same standard of review when reviewing a case tried to the court as when reviewing a jury verdict. State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989). In considering a claim of insufficient evidence, this 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, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Minn. R. 6230.0250, subp. 10.A (2005), states, “A person may not operate an all-terrain vehicle, hang glider, air boat, hover craft, or personal watercraft defined in Minnesota Statutes, section 86B.005, within the boundaries of a wildlife management area[.]”
admits that he drove his ATV onto
to object to the admission of evidence generally waives the right to appeal on
that basis, but this court has discretion to consider an error not objected to
at trial if it is plain error affecting substantial rights. State
v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). We apply a three-prong test when making a
plain-error determination: “there must be (1) error; (2) that is plain; and (3)
the error must affect substantial rights.”
Minn. R. Evid. 703(a) permits an expert witness to base an opinion or inference on inadmissible facts or data, provided the facts or data are of a type reasonably relied on by experts in the field. Minn. R. Evid. 803(6) excepts from the hearsay rule records kept in the course of regularly conducted business activity. See also Minn. R. Evid. 803(24) (stating that a statement not covered by a specific hearsay exception may be admitted if there are circumstantial guarantees of trustworthiness). If appellant had objected at trial to Henriksen’s testimony, the state would have had an opportunity to offer additional facts to show the reliability of the information provided by the assistant wildlife manager. Because it is not apparent that Henriksen’s testimony was inadmissible, the plain-error test is not met.
addition to Henriksen’s testimony, the exhibits introduced into evidence by both
parties show that the place on
The evidence is sufficient to prove beyond a reasonable doubt that the place on Marsh Lake where appellant was stopped is within the Lac qui Parle WMA.
Appellant argues that by accepting the posttrial submission from the state, the district court violated his constitutional confrontation rights to be present at all critical stages of trial and to confront adverse witnesses. The state concedes that the district court acted improperly in receiving the posttrial submission from the prosecutor.
Confrontation Clause in the Sixth Amendment to the United States Constitution grants
a defendant the right to be present at all critical stages of trial. Kentucky
v. Stincer, 482
Because appellant has not identified anything that he would have contributed to his defense in response to the posttrial submissions, he is not entitled to reversal based on his right to be present at all critical stages of trial.
the Confrontation Clauses of the United States and Minnesota Constitutions, an
accused has the right to confront adverse witnesses. U.S. Const. amends. VI, XIV; Minn. Const. art. 1, § 6; Pointer v. Texas, 380 U.S. 400, 403, 85
S. Ct. 1065, 1068 (1965); State v. Greer,
635 N.W.2d 82, 89 (Minn. 2001). A
Confrontation Clause violation is subject to a harmless-error analysis. State
v. King, 622 N.W.2d 800, 809 (Minn. 2001).
Evidence admitted in violation of the Confrontation Clause is not
harmless error unless the evidence in other respects is overwhelming or, in
other words, the evidence of guilt is so strong as to convince this court that
the erroneously admitted evidence did not affect the outcome of the case. State
v. Olson, 291 N.W.2d 203, 206 (
Two of the documents submitted after trial were copies of statutes, which the district court could have obtained on its own. The e-mail from the DNR staff person that describes the documents submitted after trial does not interpret or add anything to the documents. The other two documents, a map and excerpts from the Lac qui Parle WMA master plan, are evidentiary. The map does not show the WMA boundaries with as much clarity as the exhibits introduced at trial. The excerpts from the master plan relate to the purpose and goals of the Lac qui Parle WMA and are not relevant to the district court’s findings and conclusions.
Although the district court acted improperly in receiving evidence after trial, considering the content of the information included in the posttrial submission and the absence of any indication that the district court relied on the information in making its decision, we are convinced that the evidence did not affect the outcome of this case.
contends that the district court’s comments questioning whether a lake can be part of a WMA indicate that the district court did
not believe that the evidence submitted at trial was sufficient to find him
guilty. But those comments go to the
legal authority for including a lake within a WMA rather than to the
credibility of evidence showing that
argues that Minn. R. 6230.0250, subp. 10.A, does not apply to appellant’s
private property. Minn. Stat.
§ 97A.135, subd. 1 (2004), permits the state to acquire wildlife lands by
condemnation. The state acquired the
Appellant also argues that the district court incorrectly cited Minn. Stat. § 84A.55, subd. 11 (2004), as authority for promulgating rules governing WMAs. We agree. The prosecutor cited section 84A.55, subd. 11, as authority for the commissioner of natural resources to promulgate rules necessary for managing WMAs, and the district court apparently relied on this citation. However, Minn. R. 6230.0250 identifies Minn. Stat. §§ 14.06, 86A.06, and 97A.137 (2004) as the statutory authority for the codified rule. But the district court’s incorrect citation of authority for Minn. R. 6230.0250 is not a basis for reversing appellant’s conviction for violating Minn. R. 6230.0250, subp. 10.A. The commissioner of natural resources has authority under Minn. Stat. § 86A.06 to promulgate rules relating to wildlife-management areas, and appellant has not shown that Minn. R. 6230.0250, subp. 10.A, was not properly promulgated.
Appellant argues that his conviction must be reversed because the Lac qui Parle WMA was not posted in conformity with Minn. Stat. §§ 97A.137, subd. 2, 97B.001 (2004). Minn. Stat. § 97A.137 states:
Subdivision 1. Hunting and fishing. Wildlife management areas are open to hunting and fishing unless closed by rule of the commissioner or by posting under subdivision 2.
Subd. 2. Commissioner may restrict entry to designated areas. The commissioner may, by posting in accordance with section 97B.001, subdivision 4, designate areas within wildlife management areas that are closed to entry for the purpose of providing areas where disturbance of wildlife can be minimized. A person may not enter an area posted under this subdivision except as authorized by rule or a permit issued by the commissioner.
posting requirements cited by appellant do not apply to this case. The posting requirements of Minn. Stat.
§ 97A.137, subds. 1-2, apply only when WMAs are closed to hunting and
fishing and closed to entry other than by rule or permit. Marsh Lake was not closed to hunting or
fishing, and Minn. R. 6230.0250, subp. 10.A, restricts only the means of
traveling within WMAs. Minn. Stat.
§ 97B.001 applies to privately owned lands, and the place on
argues that his riparian rights take precedence over Minn. R. 6230.0250. Riparian rights are
the rights to reasonably use the surface of waters abutting a parcel of real
property. Johnson v. Seifert, 257 Minn. 159, 168-69, 100 N.W.2d 689, 696-97
(1960). A person does not own the water;
rather, a person who owns a lakeshore or lakebed has the riparian right to use
and enjoy the water. Pratt v. State, Dep’t of Natural Res., 309
N.W.2d 767, 772 (
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The district court’s finding of fact no. 1 incorrectly states, “[Appellant] was charged with violating Minn. R. 6230.0250 subpart 10C (amended at trial from subpart 10A as incorrectly noted on the citation).” The citation was amended to charge appellant with violating Minn. R. 6230.0250, subp. 10.A. Subpart 10.A prohibits persons from operating ATVs in WMAs, and subpart C creates an exception when ATVs are used for ice fishing.