State of Minnesota, Respondent, vs. John Kenneth Jensen, Appellant.

State of Minnesota, Respondent, vs. John Kenneth Jensen, Appellant. A06-1057, Court of Appeals Unpublished, July 3, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1057

 

State of Minnesota,
Respondent,
 
vs.
 
John Kenneth Jensen,
Appellant.

 

Filed July 3, 2007

Affirmed

Peterson, Judge

 

Big Stone County District Court

File No. T4-06-20

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

William J. Watson, Big Stone County Attorney, 37 Northwest Second Street, Ortonville, MN  56278 (for respondent)

 

William G. Peterson, Peterson Law Office, P.A., 3601 Minnesota Drive, Suite 800, Bloomington, MN  55435 (for appellant)

 

 

            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

 

PETERSON, Judge

            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.

FACTS

            Appellant John Kenneth Jensen lives on a lakeshore lot on Marsh Lake.  On January 14, 2006, State of Minnesota Conservation Officer Neil Henriksen encountered appellant using an ATV for hunting on the ice of Marsh Lake.  Henriksen stopped Jensen and issued him a citation for operating an ATV within the boundaries of a wildlife-management area (WMA) in violation of Minn. R. 6230.0250, subp. 10.A (2005).[1] 

            Henriksen testified at trial that Marsh Lake is located within the Lac qui Parle WMA.  Henriksen explained that depending on the water's elevation, there may be a strip of dry land between private property and the beginning of the lake, or, if the water is extremely high, the lake could extend onto private property.  The state owns the lake bed, and the boundaries of the state property do not change.  What changes is the amount of land that is exposed or under water.  Henriksen testified that before going onto Marsh Lake on January 14, 2006, he had been advised by an assistant wildlife manager that the water level was low enough that a strip of land within the WMA surrounded the entire lake. 

            Marsh Lake is a man-made lake, and the state acquired ownership of the lake by eminent domain.  The district court questioned whether a lakebed, even when the lake was man-made, could be designated as a WMA and requested information from the state regarding Marsh Lake's designation as a WMA.  Appellant did not object to the state providing the requested information.

            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, 86 A. 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

I.

            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[.]"

            Appellant admits that he drove his ATV onto Marsh Lake.  He argues that the evidence was insufficient to prove that Marsh Lake in its entirety is located within Lac qui Parle WMA.  Appellant objects to Henriksen's reliance on hearsay information provided by an assistant wildlife manager to determine that Marsh Lake in its entirety was within the WMA on January 14, 2006.  Appellant did not object to this testimony at trial.

            Failure 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."  Id.  Each prong of the test must be met, or the claim fails.  Id.

            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.

            In addition to Henriksen's testimony, the exhibits introduced into evidence by both parties show that the place on Marsh Lake where appellant was stopped is within the WMA.  The map introduced by appellant shows Marsh Lake in blue, and although the map legend indicates that WMAs are shown in light brown, the legend also indicates that lakes and rivers are shown in blue, and at the place where appellant was stopped, the blue area of the lake is bordered on both shores by the light-brown color used for a WMA.  The map does not contradict Henriksen's testimony that Marsh Lake is within the WMA.  In addition to the evidence at trial, Minn. Stat. § 86 A. 05, subd. 8 (2004), which states the criteria for designation of a unit as a WMA, specifically includes lakes in the types of wildlife lands and habitat that may be so designated.  And Minn. R. 6230.0250, subp. 10.C(2) (2005), which designates lakes where motor vehicles may be used for ice fishing purposes, specifically designates "Marsh Lake . . . in the Lac qui Parle Wildlife Management Area."

            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.

II.

            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.

            The 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 U.S. 730, 736, 107 S. Ct. 2658, 2662 (1987); see also Minn. R. Crim. P. 26.03, subd. 1 (granting defendants the right to be present at every stage of trial).  When a defendant is wrongfully denied the right to be present at a critical stage of trial, a new trial is not warranted if the error was harmless beyond a reasonable doubt or, in other words, if the verdict was "surely unattributable to the error."  State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001).  In applying harmless-error analysis, we consider the strength of the evidence against the defendant and "what the defendant would have contributed to his defense if he had been present."  State v. Breaux, 620 N.W.2d 326, 333 (Minn. App. 2001).

            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.

            Under 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 (Minn. 1980).

            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.

            Appellant 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 Marsh Lake is located within the WMA.  Appellant also contends that the district court's statements to appellant's father that the court did not care about posting around Marsh Lake indicate judicial bias against appellant.  But rather than indicating a bias against appellant, the statements reflect the district court's correct understanding that posting is irrelevant to appellant's guilt.

III.

            Appellant argues that Minn. R. 6230.0250, subp. 10.A, does not apply to appellant's private property.  Minn. Stat. § 97 A. 135, subd. 1 (2004), permits the state to acquire wildlife lands by condemnation.  The state acquired the land where Marsh Lake is located by condemnation.  Appellant was cited for operating an ATV on Marsh Lake, not on his private land.

            Appellant also argues that the district court incorrectly cited Minn. Stat. § 84 A. 55, subd. 11 (2004), as authority for promulgating rules governing WMAs.  We agree.  The prosecutor cited section 84 A. 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, 86 A. 06, and 97 A. 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. § 86 A. 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.

IV.

            Appellant argues that his conviction must be reversed because the Lac qui Parle WMA was not posted in conformity with Minn. Stat. §§ 97 A. 137, subd. 2, 97B.001 (2004).  Minn. Stat. § 97 A. 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.

 

            The posting requirements cited by appellant do not apply to this case.  The posting requirements of Minn. Stat. § 97 A. 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 Marsh Lake where appellant was stopped is not privately owned.

V.

            Appellant 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 (Minn. 1981).  "Riparian rights are subordinate to the rights of the public and subject to reasonable control and regulation by the state."  State v. Kuluvar, 266 Minn. 408, 418, 123 N.W.2d 699, 706 (1963).  The authority cited by appellant does not show that Minn. R. 6230.0250, subp. 10.A., unreasonably restricts appellant's access to Marsh Lake.

            Affirmed.

*   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] 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.