This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-746

 

State of Minnesota,

Respondent,

 

vs.

 

Scott L. Sorenson,

Appellant.

 

Filed June 7, 2007

Reversed

Willis, Judge

 

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, 80 South Eighth Street, Minneapolis, MN  55402 (for respondent)

 

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

WILLIS, Judge

            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.

FACTS

            The Lake Minnetonka Conservation District (LMCD) was created by the legislature to manage the surface use of Lake Minnetonka. Appellant Scott L. Sorenson is the owner of a riparian lot on Lake Minnetonka. Beginning in 2003, the LMCD received a number of complaints that Sorenson was mooring more boats at his dock than is permitted under an LMCD ordinance.  As a result of these complaints, the LMCD executive director investigated Sorenson’s property and on three occasions between August 22 and September 6, 2005, he photographed three boats moored at Sorenson’s dock.

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

            Sorenson 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 (Minn. 1989); see also State v. Lehikoinen, 463 N.W.2d 770, 772 (Minn. App. 1990) (noting that the same standard applies to a district court’s verdict as to a jury’s verdict).  But this court cannot retry the facts.  State v. Sheldon, 391 N.W.2d 537, 539 (Minn. App. 1986).  On review, we must assume that the fact-finder credited the evidence supporting the verdict and discredited any inconsistent evidence.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  Although circumstantial evidence is entitled to the same weight as direct evidence, a conviction based solely on circumstantial evidence is subject to greater scrutiny.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  Thus, we will affirm a conviction based solely on circumstantial evidence if the record considered as a whole excludes beyond a reasonable doubt the possibility of innocence and compels the conclusion that the defendant was guilty.  Id.

            Sorenson 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 (Minn. 1980).  The rules of construction that apply to statutes also apply to ordinances.  Smith v. Barry, 219 Minn. 182, 187, 17 N.W.2d 324, 327 (1944).  Thus, when construing an ordinance, this court must first determine whether the text is ambiguous, that is, whether it is reasonably subject to more than one interpretation.  See Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000).  If the text is unambiguous, we must give effect to that text because the “letter of the law shall not be disregarded under the pretext of pursuing the spirit.”  State v. Loge, 608 N.W.2d 152, 155 (Minn. 2000).

But 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 (Minn. 2005).  All doubts as to the legislative body’s intent are resolved in favor of the defendant.  State v. Serstock, 402 N.W.2d 514, 516 (Minn. 1987).

The 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 misdemeanor offense.  Id., subd. 3.  Section 2.02, subdivision 1, of the LMCD Code of Ordinances provides that after May 3, 1978, no new docks shall be constructed that are used for mooring more than one “restricted watercraft”[1] per 50 feet of shoreline.  Section 2.02, subdivision 2, provides that unless a greater number of restricted watercraft is authorized under subdivision 1, up to two restricted watercraft may be “kept at” a dock that is on a site that was in existence on August 30, 1978, regardless of the width of the shoreline.  There is no dispute that Sorenson’s site was in existence on August 30, 1978.  Thus, whether Sorenson violated the ordinance depends on whether more than two restricted watercraft were “kept at” his dock.

Sorenson 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 (Minn. 2001) (discussing statutory interpretation).  The American Heritage Dictionary defines “keep” as, inter alia, “[t]o put customarily; store.”  The American Heritage Dictionary 957 (4th ed. 2000).  

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.[2]

Reversed.