State of Minnesota, Respondent, vs. John Starway, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-793

 

State of Minnesota,

Respondent,

 

vs.

 

John Starway,

Appellant.

 

Filed April 20, 2004

Affirmed

Forsberg, Judge*

 

Hennepin County District Court

File No. 03008287

 

John Starway, 2515 Upton Avenue North, Minneapolis, MN  55411 (pro se appellant)

 

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

 

Jay M. Heffern, Minneapolis City Attorney, Steven E. Heng, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Klaphake, Judge; and Forsberg, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

On appeal from a misdemeanor conviction for violation of the city's fence ordinance, pro se appellant argues (a) the city's fence ordinance is unconstitutional; (b) the fence ordinance does not accomplish the purposes for which it was created; (c) his conviction violated the protection for double jeopardy; (d) he was prosecuted in a discriminatory manner; (e) the jury lacked certain exhibits when it found him guilty; (f) the jury instructions were incomplete; and (g) the guilty verdict was partially based on perjured evidence.  We affirm. 

FACTS

            In early 2001, the Minneapolis Housing Inspection's Division received a complaint concerning appellant John Starway's property, located at 2515 Upton Avenue North.  City of Minneapolis housing inspector Rod Thomas inspected the property on April 13, 2001, and observed that the fence was in a condition of disrepair.  Thomas also measured the height of the fence in the front of the property at 6 feet 4 inches, and the height of the fence on the side of the property at 6 feet 2 inches.  The height of the fence exceeded the height permitted by ordinance.  Based on the violation, Thomas mailed appellant a notice of the violation.  The notice, sent April 16, 2001, gave appellant until May 15, 2001, to correct the violation. 

            Appellant failed to correct the violation, and on October 9, 2001, appellant was charged with failing to maintain a fence, in violation of Minneapolis, Minn., Code of Ordinances § 535.410 (2001), and exceeding the maximum fence height in violation of Minneapolis, Minn., Code of Ordinances § 535.420 (2001).  The charges were amended to petty misdemeanors on January 16, 2002.  A bench trial followed and appellant was found guilty of both counts. 

            On January 13, 2003, Thomas returned to appellant's property and observed that none of the necessary corrections had been completed.  A few weeks later, appellant was again charged with failing to maintain a fence and exceeding the maximum fence height.  Appellant moved to dismiss on May 28, 2003.  The motion was denied and a jury trial was held on June 3, 2003.  At trial, Thomas testified that the fence was a solid wood privacy fence, and that the fence exceeded the height permitted by ordinance.  Thomas also testified that the fence was leaning and that some of the slats were twisted.  The jury found appellant not guilty of failing to maintain a fence, and guilty of exceeding the maximum fence height.  This appeal followed.

D E C I S I O N

I.

            The constitutionality of an ordinance is a question of law, which this court reviews de novo.  State v. Stallman, 519 N.W.2d 903, 906 (Minn. App. 1994).  A municipal ordinance is presumed to be constitutional.  City of St. Paul v. Dalsin, 245 Minn. 325, 329, 71 N.W.2d 855, 858 (1955).  The burden of proving that an ordinance is unconstitutional "rests on the party attacking its validity."  Id.

            Here, appellant argues that Minneapolis, Minn., Code of Ordinances § 535.420 (2003) is unconstitutionally vague because the ordinance is not written "in plain English."  "Vague statutes are prohibited under the due process clause of the fourteenth amendment."  State v. Hyland, 431 N.W.2d 868, 871 (Minn. App. 1988).  A statute is void due to vagueness if it "defines an act in a manner that encourages arbitrary and discriminatory enforcement," or the law is so indefinite that people "must guess at its meaning."  Humenansky v. Minnesota Bd. of Md. Exam'rs, 525 N.W.2d 559, 564 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  The use of general language in a statute does not make it vague.  State v. Christie, 506 N.W.2d 293, 301 (Minn. 1993).

            Ordinance 535.420 provides:

Fence height.  Fence height shall be limited by its location as specified below.  Except as otherwise provided in sections (1) and (2) below, the maximum fence height may be increased by two (2) feet if the entire fence is constructed of open, decorative, ornamental fencing materials that are less than sixty (60) percent opaque.  For purposes of this provision, vinyl coated chain link shall qualify.  In no case shall a fence exceed eight (8) feet in height, regardless of location.

(1)       Front yard.  Fences located in the required front yard shall not exceed three (3) feet in height.  The maximum fence height may be increased by one (1) foot if constructed of open, decorative, ornamental fencing materials that are less than sixty (60) percent opaque.

(2)       Corner side yard.  Fences located in the required corner yard shall not exceed three (3) feet in height.  The maximum fence height may be increased by one (1) foot if constructed of open, decorative, ornamental fencing materials that are less than sixty (60) percent opaque.  In addition, the maximum height may be increased to six (6) feet beginning at the point of intersection of the corner side wall and the rear wall of the principal structure to the rear lot line.  For the purpose of this section, open decks and porches shall not be considered part of the principal structure.

(3)       Interior side yard.  Fences located in the required interior side yard shall not exceed four (4) feet in height.  The maximum height may be increased to six (6) feet if the adjoining property has maintained a minimum interior side yard of five (5) feet along the entire length of the side wall of the principal structure.  In addition, the maximum height may be increased to six (6) feet between the rear wall of the principal structure on the adjoining property and the rear lot line.

(4)       Rear yard.  Fences located in the required rear or side yard and extending along the rear lot line shall not exceed six (6) feet in height, except that a rear yard abutting a required side yard shall be considered an interior side yard and shall be subject to the regulations of side yards.

(5)       Along public streets.  Fences not located in required yards, but located within five (5) feet of a public street or public sidewalk, shall not exceed six (6) feet in height.

 

Minneapolis, Minn., Code of Ordinances § 535.420 (2003).  The ordinance clearly sets forth the height restrictions for fences, and the ordinance is not so indefinite that appellant was forced to guess at its meaning.  Therefore, the ordinance is not unconstitutionally vague.

            Appellant also contends that the ordinance is unconstitutional because it violates the provision of the state and federal constitutions that ensure safety, equal protection, and due process.  To determine whether an ordinance has a rational basis, we first identify a legitimate government purpose, then ask whether a rational basis exists for the governmental body to believe that the legislation would further the purpose.  Graham v. Itasca County Planning Comm'n, 601 N.W.2d 461, 465 (Minn. App. 1999).  The burden of proof is on the opponent of the ordinance.  Honn v. City of Coon Rapids, 313 N.W.2d 409, 414-15 (Minn. 1981).  Under the rational-basis test, the challenged legislation need only be supported by any set of facts either known or that could reasonably be assumed. Arcadia Dev. Corp. v. City of Bloomington, 552 N.W.2d 281, 289 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  Generally, the protection of health, morals, safety, or welfare is a legitimate purpose.  Zylka v. City of Crystal, 283 Minn. 192, 195, 167 N.W.2d 45, 48-49 (1969).

            Minneapolis, Minn. Code of Ordinances § 535.370 (2002) sets forth the purposes behind the ordinances that govern fence requirements.  Ordinance 535.370 provides:

Purpose.  Standards governing fences are established to promote the public health, safety and welfare, encourage an aesthetic environment and allow for privacy, while maintaining access to light and air.

 

The purposes set forth in ordinance 535.370 are legitimate.  See Zylka, 283 Minn. at 195, 167 N.W.2d at 48-49.  Minneapolis, Minn. Code of Ordinances § 535.420 is not unconstitutional. 

II.

            Appellant argues that Minneapolis, Minn. Code of Ordinances § 535.420 does not accomplish the purpose for which it was created.  As stated above, Ordinance 535.370 provides that the purpose of the fence requirements is to "promote the public health, safety, and welfare, encourage an aesthetic environment and allow for privacy, while maintaining access to light and air."   Appellant argues that by limiting the height of a fence to three feet, ordinance 535.420 fails to allow for privacy and fails to promote safety in a high crime neighborhood.

            Allowing appellant to erect and maintain a six-foot-tall fence would probably provide appellant with more privacy and safety than a three-foot-tall fence.  But so would an eight-foot fence, or a ten-foot fence.  Appellant fails to recognize that Ordinance 535.420's purpose is not only to promote the safety and privacy of the citizens, but also to "encourage an aesthetic environment," and maintain light and air.  Minneapolis, Minn. Code of Ordinances § 535.370.  When interpreting an ordinance, the underlying policy goals of the ordinance must be considered.  Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992).  The requirements set forth in Ordinance 535.420 purport to balance all of the purposes set forth in Ordinance 535.370.  We conclude that Ordinance 535.420 does accomplish the purposes for which it was created.

III.

            Appellant argues that his conviction for the January 13, 2003, offense was a violation of the double jeopardy clause because he was previously convicted of the same offense in January 2002.  This "court reviews de novo the constitutional issue of double jeopardy."  State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999).

            The Double Jeopardy Clauses of the United States and Minnesota Constitutions protect criminal defendants from abuses including "second prosecution for the same offense after conviction."  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998).   "Nuisance, however, is a continuing offense."  State v. Erickson, 367 N.W.2d 539, 540 (Minn. App. 1985).  "Thus, repeated prosecutions may proceed over claims of double jeopardy until the nuisance is abated."  Id.

            Here, appellant was convicted of exceeding the maximum fence height in January 2002, and again in June 2003.  But appellant's violations were part of a continuing offense because he failed to fix the problem.  Consequently, appellant's convictions do not violate the prohibition against double jeopardy.

IV.

            Appellant argues that he was prosecuted in a discriminatory manner because there are other people in the neighborhood with similar fences that were not prosecuted.  "[I]ntentional, discriminatory enforcement of municipal ordinances" is prohibited by the Equal Protection Clause of the Fourteenth Amendment.  State v. Hyland, 431 N.W.2d 868, 872 (Minn. App. 1988).  But it is presumed that criminal prosecutions are brought in good faith and in a nondiscriminatory manner.  Id.  To prove discriminatory enforcement

a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right.

 

State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984).  Discriminatory enforcement must be proven by a preponderance of the evidence.  Id. at 38. 

            Here, the Minneapolis Housing Inspection's Division received a complaint concerning appellant's property.  Upon an inspection of the premises, it was determined that appellant was in violation of Ordinance 535.420.  Although appellant argues that others in the same community were violating the same ordinance, appellant failed to show that the fact that he was prosecuted, while others were not, was based on an impermissible consideration such as race, religion, or the desire to prevent his exercise of a constitutional right.  See Hyland, 431 N.W.2d at 873 (holding that without a showing of membership in a suspect class or exercise of a fundamental right, a defendant is unable to meet his burden of establishing discriminatory enforcement).  Therefore, appellant failed to establish discriminatory enforcement.

V.

            Appellant argues that the district court abused its discretion by refusing to allow into evidence various exhibits submitted by appellant.  Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990).  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.  State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997).

            It appears that at some point during the proceedings appellant attempted to admit various exhibits into evidence.  However, there is nothing in the record that shows that appellant requested the exhibits be admitted into evidence.  When appellant ordered the transcript for this appeal, he only requested the portion of the transcript containing the testimony of Rob Thomas.  There is essentially nothing for this court to review in order to determine whether the district court abused its discretion by suppressing the evidence.  We therefore decline to address this issue.   

VI.

            Appellant argues that the jury instructions were incomplete.  But similar to the issue above, the record is devoid of a transcript pertaining to the discussion of the jury instructions.  When the record on appeal is inadequate, relief cannot be granted, and the district court's order must be affirmed.  See State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984) (affirming conviction when defendant provided no record showing prejudice that would entitle him to a new trial).  Again, we decline to address the issue.

VII.

            Appellant argues that his conviction should be reversed because it was based on perjured testimony.  A new trial is appropriate when the court is reasonably sure that a material witness testified falsely, the jury would have reached a different conclusion without the perjured testimony, and the defendant was taken by surprise and could not respond at trial.  State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn. 1982). 

            Here, appellant has not met the standard of proof.  The jury was the ultimate judge of witness credibility.  See State v. Washington, 521 N.W.2d 35, 42 (Minn. 1994) (stating that when a defendant alleged perjured testimony, the court deferred to the jury's opportunity to view witnesses' direct and cross examination and weigh credibility).  There is nothing in the record to support appellant's allegations that Rob Thomas testified untruthfully.  Appellant is not entitled to a new trial.

            Affirmed.

 

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