This opinion will be unpublished and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
C5-02-889
State of Minnesota,
Respondent,
vs.
K & J Investment Inc.,
Appellant.
Filed February 25, 2003
Affirmed
Anderson, Judge
Le Sueur County District Court
File No. T6012358
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Timothy L. Warnemunde, 400 First Street South, P.O. Box 22, Montgomery, MN 56069 (for respondent)
Robert M. Greising, Greising Law Offices, P.A., 414 East Main Street, Waterville, MN 56096 (for appellant)
Considered and decided by Wright, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.
G. BARRY ANDERSON, Judge
Appellant K & J Investments Inc., challenges a misdemeanor conviction for violating Montgomery, Minnesota’s blight ordinance, arguing that the evidence produced at trial was insufficient to support the conviction. Because the state met its burden of proof, we affirm.
Appellant K & J Investments is a closely held corporation that owns land and operates a business in Montgomery, Minnesota. Appellant buys goods at auctions around the country, bringing the material to Montgomery for cleaning and repair before the products are taken out of state for resale. Gerald Odle and Karen Chambers are the sole shareholders and officers of the corporation.
On June 4, 2001, Montgomery Police Officer Edward Keogh inspected appellant’s property to determine whether it complied with the city’s blight ordinance. Keogh informed Chambers and Odle of the reason for the inspection, that the property violated the blight ordinance, and the steps they could take to bring their property into compliance with the ordinance.
Keogh inspected the property on August 9, 2001, and again found the property to be in violation of the blight ordinance. During the second inspection, Keogh found improperly licensed and inoperable vehicles, tires, axels, an iron frame leaning against a wooden structure, brush, a blue plastic barrel, scrap iron, pallets, and debris littering appellant’s property. Keogh took several pictures during the August inspection. These pictures show piles of tires and scrap iron, debris resting on top of rusted pallets, mounds of wood, vehicles in various states of disrepair, and large containers strewn across appellant’s property. Following this inspection, Keogh issued Chambers a written citation alleging a violation of the city’s blight ordinance.
Appellant maintains that several items cited by Keogh were being reconditioned and had been sold, were about to be sold, or removed. Likewise, appellant contends that some of the items identified as scrap iron were actually large containers disassembled for easier storage.
At Chambers’ request, Keogh returned to appellant’s property on August 23, 2001, to determine if the property complied with the ordinance. Keogh determined that although the tires and axles were gone, the property was still in violation of the blight ordinance. During a subsequent inspection, conducted September 16, 2001, Keogh again determined that the property did not comply with the blight ordinance, and a formal complaint was issued alleging that appellant’s property was littered with waste and debris.
On February 25, 2002, Keogh again returned to appellant’s property and found it to be in worse condition than the previous September. Keogh again took pictures of appellant’s land, showing many of the same items strewn across the property previously photographed in August. During this inspection, Chambers told Keogh that she planned to have much of the offending material taken away as soon as dumpsters could be delivered.
Following trial, the district court found that although unlicensed vehicles were located on appellant’s property, there was no evidence presented that these vehicles were inoperable as required by the city’s ordinance. Montgomery, Minn., City Ordinance § 1050.02, subd. 1(B). But the district court did find that several other offending items were on appellant’s property and did create blighted conditions, such as “metal pieces, tires and rims, plastic and wooden barrels/crates, piles of lumber, old appliances and the like.” Based on these findings, the district court convicted appellant of violating the city’s blight ordinance from June 4, 2001, to February 25, 2002. This appeal followed.
Appellant claims that there was insufficient evidence produced at trial to support the conviction. We are asked to determine whether the district court erred in convicting appellant of maintaining a blighted property on September 16, 2001, the date of the offense given in the formal complaint. 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 the light most favorable to the conviction, is sufficient to allow the trial court to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). City ordinances and municipal codes, like all penal provisions, are to be strictly construed before a person is subjected to criminal liability. State v. Larson Transfer and Storage, Inc., 310 Minn. 295, 304, 246 N.W.2d 176, 182 (1976). The reviewing court must assume the trial court believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The trial court is in the best position to evaluate the evidence, and its verdict is entitled to due deference. See Webb, 440 N.W.2d at 430.
The parties agree that a violation of Montgomery’s blight ordinance is a misdemeanor and the district court was required to find appellant violated the ordinance beyond a reasonable doubt. Minn. Stat § 609.02, subd. 1 (2000); see State v. Olson, 478 N.W.2d 218, 221 (Minn. App. 1991). In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict it did. Webb, 440 N.W.2dd at 430. Our review is the same for a court trial as for a jury trial. State v. Lehikoinen, 463 N.W.2d 770, 772 (Minn.App.1990).
Appellant first argues that the district court improperly considered the condition of the property in February 2002. The basis for appellant’s argument is that the district court ruled that the complaint could not be amended to include the February 2002 violation due to lack of notice, and much of officer Keogh’s testimony focused on the condition of the property in February 2002. But this argument ignores the district court’s findings that as of the date of the formal complaint, September 16, 2001, a blighted condition existed on appellant’s property.
The district court’s finding concerning the state of appellant’s land in February 2002 demonstrates that appellant had first been alerted to the violation of Montgomery’s blight ordinance in June 2001. Six months later, appellant had still not significantly improved the condition of its property. Further, there was sufficient evidence produced at trial to prove that appellant maintained a blighted property at the time the complaint was filed on September 16, 2001.
Montgomery’s blight ordinance declares that
[n]o person, firm or corporation of any kind shall maintain * * * *
[i]n any area the storage or accumulation of junk, trash, rubbish or refuse of any kind, except refuse stored in such a manner as not to create a nuisance for a period not to exceed thirty (30) days. The term “Junk” shall include parts of machinery or motor vehicles, unused stoves or other appliances stored in the open; remnants of wood, decayed, weathered or broken construction materials no longer suitable for sale, approved building materials; metal or other cast off material of any kind, whether or not the same could be put to reasonable use.
Montgomery, Minn., City Ordinance § 1050.02, subd. 1(C).
Keogh testified that when he first inspected the property in June 2001 he found it to be in violation of Montgomery’s ordinance. Keogh also testified that he again inspected the property in August 2001 and found it to still be in violation of the blight ordinance. On the property, Keogh observed tires, axles, brush, and large plastic containers, scrap iron, large pallets with debris piled upon them, and a large iron or metal frame leaning against a wooden structure. Despite the fact that some tires, axles and other items had been removed, Keogh found that the property was substantially unchanged in late August. Keogh inspected the property again on September 16, 2001, and again found it in violation of the blight ordinance.
Although Keogh’s testimony is brief and short on details, the photographs he took during his August 9 inspection show piles of rusted metal lying on top of rusted pallets, large storage containers in various states of disrepair and overgrown with weeds, and large piles of wood that seem to have been exposed to the elements for some time. These pictures, combined with Keogh’s testimony that the property had not substantially improved when he made his September inspection, and the pictures taken just before trial in February 2002 showing the property still overrun with much of the same garbage and debris, was more than sufficient to prove appellant’s guilt.
Appellant contends that no evidence was presented to the district court detailing when written notice was given, or showing that appellant was informed what areas of its property violated the ordinance. The evidence does not support this argument. Keogh testified that he issued a written citation on August 9, notifying appellant that it was in violation of the city’s blight ordinance. Further, testimony at trial was that during his June and August inspections, Keogh met with Chambers and Odle to discuss the code violations. Appellant’s notice argument is without merit.
Finally, appellant argues that the debris on its property was stored in anticipation of the arrival of dumpsters and subsequent removal. To support this argument appellant points to Keogh’s testimony in which he admits that Chambers told him in February 2002 that appellant planned to remove much of the offending material from its property.
But appellant’s argument ignores the fact that the complaint was based on the condition of appellant’s property in September and August 2001, not February 2002 when appellant was preparing to remove much of the debris. In addition, there was considerable evidence to support the district court’s finding that during August and September 2001, appellant stored blighted materials on its property in excess of 30 days. The offending material was first brought to appellant’s attention in June 2001. The material remained on the property on August 9 when the citation was issued. Keogh also testified that despite modest improvements to the property by September 16, 2001, a week past the 30-day grace period that began when the citation was issued, the property still violated the blight ordinance.
The pictures taken in February 2002 depict much of the same debris photographed in August 2001. For appellant to argue that the material was awaiting removal in February concedes that the offending material had been stored on the property for nearly six months, well in excess of the 30-day grace period and also leads to the inevitable conclusion that offending material was present in September 2001.
The record contains evidence that at the time the complaint was issued, appellant’s property was in violation of Montgomery’s blight ordinance and that appellant was responsible for, and received notice of, the violation and did not rectify the condition in the time allotted by the ordinance. See State v. Ellis, 441 N.W.2d 134, 136 (Minn. App. 1989) (evidence was sufficient to support the appellant’s conviction where there was evidence that (1) a violation had occurred, (2) the landlord was responsible, (3) the city had provided the landlord with notice of the violation and (4) the landlord failed to correct the violation in the time required by the ordinance), review denied (Minn. July 12, 1989). Based on this record, we conclude that the district court properly found appellant guilty beyond a reasonable doubt of violating the Montgomery blight ordinance on September 16, 2001.[1] See City of Burnsville v. Brastad, 354 N.W.2d 85, 86 (Minn. App. 1984) (the testimony of just one witness was enough to prove the appellant violated an ordinance prohibiting the outside storage of inoperable vehicles, equipment, and debris).
Affirmed.
[1] The state concedes and we agree that it was error for the district court to enter convictions for dates other than September 16, 2001, and those convictions are hereby vacated.