State of Minnesota, Respondent, vs. V. Henry Peterson, Appellant.

State of Minnesota, Respondent, vs. V. Henry Peterson, Appellant. A04-474, Court of Appeals Unpublished, March 15, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-474

 

State of Minnesota,

Respondent,

 

vs.

 

V. Henry Peterson,

Appellant.

 

Filed March 15, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Steele County District Court

File No. T1-02-3642

 

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and,

 

Dawn E. Johnson, Assistant Steele County Attorney, Steele County Courthouse, 303 South Cedar, Owatonna, MN 55060 (for respondent)

 

V. Henry Peterson, 12653 SW 52nd Avenue, Ellendale, MN 56026 (pro se appellant)

 

           

Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

 

            Appellant challenges the district court's denial of his motion for a continuance of his criminal trial so that an expert witness could testify.  Because the record shows that the district court did not abuse its discretion in denying the motion, we affirm.

FACTS

 

            After a bench trial, the district court found appellant V. Henry Peterson guilty of obstructing legal process.  The dispositive facts are not in dispute.

            Peterson had complained to Steele County employees about drainage problems on a portion of his property.  The county engineer spoke with him several times about remedies but they did not reach an agreement or understanding about a solution.

            The county engineer eventually decided that paving work on the county's right-of-way that extended onto Peterson's property would cause water runoff to fall within the curb and gutter line and thus carry it away from Peterson's driveway.  Peterson believed that the remedy was to install a catch basin to help with the runoff.  The county rejected that idea because it would entail tearing up a road that was only ten years old and would result in unjustified expense.

The engineer sent a county construction crew to the Peterson property to do the paving work.  The crew staked out the right-of-way and started to work entirely within the right-of-way, never coming closer than a foot to the end of the right-of-way line.

            Before the actual work began, Peterson placed a pail in the middle of the right-of-way and sat on it.  When an employee began to operate a skid loader, Peterson moved the bucket in front of it and again sat down.  Whenever the employee moved the skid loader to another part of the right-of-way, Peterson moved the bucket in front of the skid loader and sat down.

            Finally, the crew called the sheriff.  Peterson refused a deputy's directive that he was to leave the right-of-way.  The deputy then arrested him, placed handcuffs on him, and began to escort him to a squad car.  Peterson resisted and the deputy found it necessary to apply a wristlock to move him toward the squad.

            Peterson pleaded not guilty to the charge of obstructing legal process, and a bench trial began on September 4, 2003.  Peterson appeared pro se.  The prosecution rested its case on that day, and Peterson announced that he did not feel well.  The court granted a continuance.

            The case was reset for December 10, 2003.  Peterson had subpoenaed Phil Morreim, who, Peterson states, is a drainage expert, to testify on that date.  Morreim did appear but Peterson did not.  Instead, he called the court and requested a continuance because of inclement weather.  The court continued the trial until December 11, 2003.

            Peterson appeared on that day but Morreim did not.  Peterson requested a continuance so that Morreim could be present to testify.  Ruling that "a subpoena is a continuous document . . . ," that it was Peterson's obligation to notify Morreim that he would have to return the next day, and that Peterson had failed to show good cause for a continuance, the court denied the motion.

            After arguments by the parties, the court found Peterson guilty and imposed a sentence.  The court denied a later motion for a new trial that was based on the allegation that the court denied Peterson due process by failing to grant a continuance so that his expert witness could testify.  Peterson appealed.

D E C I S I O N

 

            Rulings on continuance requests are within the district court's discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987) (citation omitted).  An appellate court will not reverse the denial of a motion for continuance absent a clear abuse of discretion.  Id.  In determining whether the district court soundly exercised its discretion, the reviewing court "must examine the circumstances before the trial court when the motion was made to determine whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial."  State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984) (citing State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980)).

In determining whether the district court abused its discretion in denying Peterson's continuance request on December 11, 2003, we may consider the court's rulings on previous requests for continuance.  State v. Miller, 488 N.W.2d 235, 239 (Minn. 1992).  The court granted two previous requests by Peterson for continuances.  As to the third request, the record shows that Peterson did nothing to ensure that Morreim was notified of the new date and time for the resumption of the trial.  As a pro se defendant, it is possible that he was unsure of whose responsibility it was to notify a subpoenaed witness that he would have to return on the day to which the case had been continued.  But there is nothing in the record to show that Peterson inquired of the court or of court administrators, with whom he had prior contacts, about the procedure to be followed for securing the attendance of Morreim on December 11.  Because he subpoenaed Morreim in the first place, it is a reasonable inference that he knew that some action had to be taken to obtain Morreim's appearance on the new date.

Moreover, there is nothing in the trial record that shows that Morreim would have been a material witness or even what he would have testified to.  The first indication as to the purpose of Morreim's testimony is found in Peterson's informal letter brief on appeal.  Referring to Morreim, Peterson states:  "He was a drainage expert who could show the work done by the County was worthless."  Peterson had attempted to raise the issue at trial that the county's work would have been ineffective to remedy the drainage problem, but the court properly precluded such evidence as irrelevant to the criminal charge.  Assuming that Morreim would have testified that the county's remedy would be ineffective to cure the problem of which Peterson had complained to the county, the testimony would be of no probative value in establishing a defense to, or excuse for, obstructing legal process.  To show an abuse of discretion, Peterson must show that he was unfairly prejudiced because Morreim would have been able to provide material evidence in Peterson's defense.  See State v. Kindem, 338 N.W.2d 9, 15 (Minn. 1983); see also Lloyd, 345 N.W.2d at 247 (holding that the denial of a continuance was not an abuse of discretion because the evidence to be presented did not materially affect the outcome of the case).  Peterson has not been able to make the requisite showing.  The district court did not abuse its discretion in denying Peterson's third request for a continuance.

            The evidence is unassailable that the county confined its work to its own right-of-way.  Peterson has shown no authority stating that a property owner has a right or privilege, through passive resistance, to obstruct a county in its effort to improve its own right-of-way.  Peterson cites Souther v. Northwestern Tel. Exch. Co., 118 Minn. 102, 136 N.W. 571 (1912), for the allegedly analogous proposition that a property owner may use passive resistance to prevent a utility from digging telephone holes on the owner's property if the owner has a reasonable belief that the utility's conduct is unlawful.

            The case is inapposite.  There is no evidence that Peterson believed the county's work on its own right-of-way to be unlawful nor does he contend that on appeal.  He did not testify, and he offered no evidence from which such a belief could reasonably be inferred.  What is clear from the record is that he was convinced that the work would not solve the problem and would instead injure a portion of his driveway on which he had placed special rock.  And he decided to passively resist the county's endeavor.

            Affirmed.