STATE OF MINNESOTA

IN COURT OF APPEALS

A06-986

State of Minnesota,
Respondent,

vs.

Stephen Edward Hibbs,
Appellant.

Filed June 5, 2007

Reversed

Wright, Judge

Hennepin County District Court

File No. 06003905

Stephen E. Hibbs, 10361 Yates Drive North, Brooklyn Park, MN 55443 (pro se appellant)

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jay M. Heffern, Minneapolis City Attorney, Jennifer A. Saunders, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)

Considered and decided by Minge, Presiding Judge; Wright, Judge; and Collins, Judge.*

U N P U B L I S H E D O P I N I O N

WRIGHT, Judge

Appellant challenges his conviction of violating a city traffic ordinance, arguing that the evidence does not support the verdict, the ordinance is unconstitutionally vague, and the district court abused its discretion by admitting into evidence documents that were not produced during discovery. Appellant also seeks reimbursement from the state for the costs of this appeal. We reverse.

FACTS

On October 27, 2005, Minneapolis Police Officer Steve Wuorinen issued a citation to appellant Stephen Hibbs for violating a Minneapolis traffic ordinance. The ordinance makes it unlawful for a driver to “start or accelerate any motor vehicle with an unnecessary exhibition of speed on any public or private way within the city limits.” Minneapolis, Minn., Code of Ordinances § 474.30 (2005). At trial, respondent State of Minnesota introduced a photocopy of Officer Wuorinen’s patrol log. Hibbs objected to its admission into evidence, arguing that the state failed to produce that document during discovery. Without expressly ruling on the objection, the district court continued the trial and ordered the parties to provide one another copies of any documents that they intended to offer into evidence. When the trial resumed several days later, Hibbs objected to the patrol log on the same ground. The district court overruled the objection.

Officer Wuorinen testified that, using a radar device, he measured Hibbs’s speed at 66 miles per hour, six miles over the posted speed limit on the portion of interstate highway where Hibbs was traveling. A second radar test measured Hibbs’s speed at 63 miles per hour. Officer Wuorinen stopped the vehicle and issued Hibbs the citation. The district court ruled from the bench that Hibbs was driving his vehicle faster than the posted speed limit. In a written order, the district court found Hibbs guilty of violating the ordinance. This appeal followed.

D E C I S I O N

Hibbs argues that the evidence before the district court is insufficient to support the guilty verdict. When reviewing a challenge to the sufficiency of the evidence, we conduct a painstaking analysis of the record to determine whether the fact-finder could reasonably find the defendant guilty of the offense based on the facts in the record and the legitimate inferences that can be drawn from those facts. State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999). In doing so, we view the evidence in the light most favorable to the verdict and assume that the fact-finder believed the evidence supporting the verdict and disbelieved any contrary evidence. Id.[1] We will not disturb the verdict if the fact-finder, 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).

The elements of a violation of Minneapolis, Minn., Code of Ordinances § 474.30, are that the driver (1) started or accelerated a vehicle (2) with an unnecessary exhibition of speed[2] (3) on a public or private way (4) within the Minneapolis city limits.

Here, the record is entirely devoid of any evidence that Hibbs “start[ed] or accelerate[d]” the vehicle with an unnecessary exhibition of speed. To the contrary, the evidence establishes that Hibbs decelerated the vehicle from 66 to 63 miles per hour. Even if we accept the state’s contention that the evidence of Hibbs’s driving above the posted speed limit proves an unnecessary exhibition of speed, this evidence and the legitimate inferences drawn from it do not prove beyond a reasonable doubt that Hibbs started or accelerated with an unnecessary exhibition of speed within the city limits, as required by Minneapolis, Minn., Code of Ordinances § 474.30. Indeed, on this record, it is equally probable that Hibbs accelerated to 66 miles per hour before entering the Minneapolis city limits via the interstate highway on which he was traveling and maintained that rate of speed until the radar detected his deceleration. The state urges us to attribute probative value to Hibbs’s failure to deny that he accelerated his vehicle within the Minneapolis city limits.[3] To do so, however, would unconstitutionally shift to Hibbs the burden to disprove an element of the crime, State v. Hage, 595 N.W.2d 200, 204 (Minn. 1999), and thereby prove his innocence, State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993). From our careful review of the record, we concluded that the evidence is insufficient to support a guilty verdict. We, therefore, reverse the conviction.[4]

Hibbs seeks reimbursement from the state for the costs of this appeal, arguing that, as the prevailing party, he is entitled to such costs. Because the Minnesota rules do not authorize reimbursement for such costs when the defendant in a criminal case appeals, cf. Minn. R. Crim. P. 28.04, subd. 2(6) (allowing defendant reasonable attorney fees and costs incurred only when state appeals), we deny this request.

Reversed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Hibbs argues that this standard is unconstitutional because it shifts the burden of proof to the defendant to prove his innocence. See State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (proscribing shift of burden of proof to defendant to prove innocence). But this argument is unavailing because a criminal defendant is entitled to the presumption of innocence only until the fact-finder renders a guilty verdict. See Minn. R. Crim. P. 23.05, subd. 3 (stating that defendant charged with petty-misdemeanor violation is presumed innocent until proven guilty beyond reasonable doubt).

[2] The ordinance also states that prima facie evidence of an unnecessary exhibition of speed exists if the vehicle’s tires emitted an unreasonable squealing or screeching sound or threw gravel. Minneapolis, Minn., Code of Ordinances § 474.30 (2005). Such evidence is not present here.

[3] Hibbs gave his direct testimony in narrative form, and the prosecutor did not cross-examine him.

[4] In light of our decision, we need not reach Hibbs’s arguments for reversal because the ordinance is unconstitutionally vague as applied and because the conviction is based on erroneous evidentiary rulings.