State of Minnesota, Respondent, vs. Benjamin Ekblad, 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This opinion will be unpublished and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

A03-1617

 

State of Minnesota,
Respondent,
 
vs.
 
Benjamin Ekblad,
Appellant.

 

Filed November 16, 2004 Affirmed

Peterson, Judge

 

Martin County District Court

File No. T403827

 

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

 

Terry W. Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, 123 Downtown Plaza, Fairmont, MN  56031 (for respondent)

 

Benjamin Ekblad, 1324 Lucia Avenue, Fairmont, MN  56031 (pro se appellant)

 

 

            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Forsberg, 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 failing to drive with due care in violation of section 169.14, subdivision 1, a petty misdemeanor, appellant argues that (1) the district court lacked subject-matter jurisdiction because the statute under which he was convicted lacked an enacting clause; (2) the county attorney could not lawfully prosecute the case because he had not filed his oath of office or bond; (3) the trial judge was biased against him; (4) he was denied his right to counsel; (5) the prosecutor did not disclose all trial witnesses; and (6) the evidence was insufficient to support the conviction.  We affirm.

FACTS

            On April 4, 2003, state trooper Jeremy Geiger and deputy sheriff Jean Vath were investigating an accident on Interstate 90.  Vath's squad car was parked behind Geiger's squad car on the right shoulder of the road.  Vath had the red flashing emergency lights activated to alert traffic to move to the inside lane.  Vath looked in her rear-view mirror and saw a car slow down and move to the inside lane as it approached and passed the accident scene.  She also saw a second vehicle approaching the first car at a high rate of speed and was concerned that it might not be able to slow down in time due to the slippery conditions of the road.  Both officers testified that the road was icy.

Appellant Benjamin Philip Ekblad was the driver of the second vehicle.  As appellant attempted to slow down, he lost control of his vehicle, hit the median wall, and crashed into the first vehicle.  Appellant was issued a citation for failing to drive with due care in violation of Minn. Stat. § 169.14, subd. 1 (2002).

At his initial arraignment on May 6, 2003, appellant moved to dismiss for lack of subject-matter jurisdiction, asserting that the statute under which he was convicted lacked an enacting clause.  The district court denied the motion, and a formal complaint was filed at appellant's request.

At the next hearing, in June 2003, appellant moved to dismiss for failure to prosecute, arguing that the assistant county attorneys, Elizabeth Bloomquist and Michael Trushenski, were not authorized to prosecute because they had failed to properly refile their oaths of office after the county attorney was reelected.  The court denied the motion after Trushenski stated that both he and Bloomquist had filed their oaths of office at the time of their original appointments.  The matter was continued so that appellant could obtain counsel before entering his plea.

In July 2003, appellant appeared without counsel.  When the court asked if he intended to proceed without counsel, appellant did not respond.  Instead, appellant moved to dismiss for failure to file a valid formal complaint, arguing that the complainant, Trooper Mike DeJong, had no firsthand knowledge about the incident.  The court denied the motion, citing State v. Florence, 306 Minn. 442, 457, 239 N.W.2d 892, 902 (1976),but granted appellant's subsequent motion for a probable-cause hearing.  See Minn. R. Crim. P. 11.03 (allowing consideration of reliable hearsay in determining probable cause).

At the omnibus hearing in August 2003, appellant again appeared and proceeded without counsel.  The state submitted police reports from the officers who witnessed the accident.  The district court found probable cause to proceed and entered a not guilty plea on appellant's behalf after appellant declined to enter a plea without the assistance of counsel.  The state indicated to appellant that it would call Vath and Geiger as witnesses at trial.

On August 29, 2003, appellant filed a motion to remove the trial judge, arguing that the judge was prejudiced against him.  As evidence of the judge's prejudice, appellant cited the judge's acts of (1) summarily denying appellant's motion to dismiss for lack of subject-matter jurisdiction; (2) attempting to intimidate appellant into entering a guilty plea by misstating the charge against him; (3) permitting the prosecution to proceed when the assistant county attorneys did not refile their oaths of office after the county attorney was reelected; and (4) entering a plea on appellant's behalf when appellant did not have counsel.  The court treated appellant's motion as a notice to remove pursuant to Minn. R. Crim. P. 26.03, subd. 13 (4), and denied the motion as untimely.

Following a trial, the court found appellant guilty of failing to drive with due care in violation of Minn. Stat. § 169.14, subd. 1, and fined appellant $300.

            In October 2003, appellant moved to vacate the judgment.  Appellant renewed all of his previous arguments and, in addition, argued that his right to counsel was denied, the evidence was insufficient to support the verdict, and the prosecution failed to provide him with the addresses of the witnesses against him. The district court denied the motion.  This appeal followed.

D E C I S I O N

Subject-matter jurisdiction

Appellant argues that the district court lacked subject-matter jurisdiction because the statute under which he was convicted does not contain the constitutionally required enactment clause.

The determination of subject-matter jurisdiction is a question of law, which this court reviews de novo. State v. Busse, 644 N.W.2d 79, 82 (Minn. 2002); see also Hale v. Viking Trucking Co., 654 N.W.2d 119, 123 (Minn. 2002) (existence of subject-matter jurisdiction is a question of law).  A sentence pronounced by a court that lacks subject-matter jurisdiction is wholly void. State v. Minton, 276 Minn. 213, 217, 149 N.W.2d 384, 387 (1967).  One who challenges the constitutional validity of a statute "must overcome the heavy burden of showing beyond a reasonable doubt that the statute is unconstitutional."  State v. Tennin, 674 N.W.2d 403, 407 (Minn. 2004).

The Minnesota Constitution requires that each law shall begin with the phrase,  "Be it enacted by the legislature of the state of Minnesota."  Minn. Const. art. IV, § 22. The laws of Minnesota are those passed by the legislature, signed by the governor or enacted without signature or over veto, and filed with the secretary of state.  Minn. Stat. § 3C.06 (2002).  The revisor of statutes publishes the laws of each legislative session in a publication entitled "Laws of Minnesota." Minn. Stat. § 3C.06, subd. 1 (2002).  The laws are then codified and published in Minnesota Statutes.  Minn. Stat. § 3C.08 (2002).Printed copies of Minnesota Statutes need not contain the enactment clauses of the statutes contained therein.  Minn. Stat. § 3C.08 (2002).  Furthermore, because Minnesota follows the "journal entry rule," it is the journals of the legislaturethat must be examined to determine whether the constitutional prerequisites to the enactment of a law have been satisfied.  State ex rel. Foster v. Naftalin, 246 Minn. 181, 187, 74 N.W.2d 249, 254 (1956).  But "[a]ny volume of Minnesota Statutes, supplement to Minnesota Statutes, and Laws of Minnesota certified by the revisor . . . is prima facie evidence of the statute contained in it in all courts and proceedings."  Minn. Stat. § 3C.13 (2002) (italics added). Each of the acts creating and amending Minn. Stat. § 169.14, subd. 1, as published in the Laws of Minnesota, begins with the phrase, "Be it enacted by the legislature of the state of Minnesota."  See Minn. Stat. § 169.14, subd. 1 (2002) (history of law); 1937 Minn. Laws ch. 464, § 28; 1939 Minn. Laws ch. 430, § 6; 1994 Minn. Laws ch. 645, § 1 (amending subdivision 1).  Appellant did not present any evidence that indicates that the constitutional prerequisites to the enactment of Minn. Stat. § 169.14, subd. 1, have not been satisfied.  Appellant's argument is meritless. 

Oath of office

Appellant argues that because the county attorney and his appointed assistants did not properly file their oaths of office after the county attorney was reelected, the county attorneys' office was vacant.  Therefore, appellant argues, both the complaint and his conviction are invalid because no one was authorized to prosecute the matter. See Minn. R. Crim. P. 2.02 (stating complaint shall not be filed without written approval of prosecuting attorney authorized to prosecute the offense charged).

Appellant's argument is essentially one of statutory interpretation.  Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  In Minnesota,

 [e]very office shall become vacant on the happening of . . . the following events, before the expiration of the term of such office:  . . .

[t]he incumbent's refusal or neglect to take the oath of office, or to give or renew the official bond, or to deposit or file such oath or bond within the time prescribed[.]

 

Minn. Stat. § 351.02 (6) (2002).  A county attorney's term of office is "four years and until a successor qualifies."  Minn. Stat. § 388.01 (2002).  "Before entering upon duties the county attorney shall take an oath. The oath must be filed for record with the county recorder."  Id.  Assistant county attorneys "shall have the same duties and be subject to the same liabilities as the county attorney and hold office during the pleasure of the county attorney. . . . [T]he assistant's oath and appointment shall be filed for record with the county recorder."  Minn. Stat. § 388.10 (2002).  The statutes do not prescribe a specific time for filing the oaths.   

Terry Viesselman, the county attorney, took his oath of office on January 7, 2003, after his reelection.  The oath was filed in October 2003, after appellant was found guilty.[1]  The two assistant county attorneys, Elizabeth Bloomquist and Michael Trushenski, were appointed in January 1996 and March 1998, respectively.

Appellant argues that because Viesselman did not file his oath before assuming the duties of his office, the office of county attorney became vacant, and with the office vacant, neither Bloomquist nor Trushenski was validly appointed.  Appellant also argues that assistant county attorneys' appointments and oaths expire when the county attorney's term expires and, therefore, Bloomquist and Trushenski were required to retake and refile their oaths of office when Viesselman was reelected.

In support of his argument, appellant cites State ex rel. Egan v. Schram, 82 Minn. 420, 85 N.W. 155 (1901) and State ex rel. Webb v. Stratte, 83 Minn. 194, 86 N.W. 20 (1901).  But neither case stands for the proposition appellant asserts.  In Schram, Egan failed to timely execute or file his oath of office before performing his duties as an officer and sought compensation for his services.  82 Minn. at 420-23, 85 N.W. at 155-56.  The supreme court held that while public policy requires "that the acts of a defacto officer are valid as to . . . the public," Egan was not entitled to benefit from that principle where the failure to conform to the statute was under his exclusive control.  Id. at 422-23, 85 N.W. at 156 (emphasis added).  The court did not hold that the office was vacant or that Egan's acts as an officer were invalid.

Appellant quotes language from Stratte that describes the predecessor to Minn. Stat. § 351.02 (6),[2] as providing "that every office shall become vacant upon the failure, refusal, or neglect of an elected or appointed officer to take his oath of office and file the same within the time prescribed by law." 83 Minn. at 195, 86 N.W. at 20.  Appellant interprets Stratte to mean that the office of county attorney became vacant when Viesselman failed to file his oath of office or bond.  But that is not what the Stratte court held.  To the contrary, the court held in Stratte that a school-district clerk who was elected for a term that began on August 1, but who did not take an oath of office until September 10, did not forfeit the office when no action was taken to fill the office by electing another person.  83 Minn. at 196, 86 N.W. at 21.

The Stratte court explained:

As a general rule, it is held that a failure to take the oath of office within the time specified by law does not ipso facto create a vacancy which will prevent an officer from qualifying thereafter, if it is done before any steps are taken to declare a vacancy, although the statute declares that the office become vacant on refusal or neglect to take the oath within the time prescribed.

 

Id.  Under Stratte, the office of county attorney did not become vacant simply because Viesselman failed to file his oath of office.

Furthermore,

[p]erson[s] exercising duties of public office under color of a known appointment or election, though . . . failing to perform some prerequisite to the assumption thereof such as taking of a prescribed oath, [are] [d]e facto officer[s] therein, and public policy requires that actions performed by [them] under authority of the office be deemed valid as to the public and third persons.

 

Huff v. Sauer, 243 Minn. 425, 425, 68 N.W.2d 252, 253 (1955).

Viesselman took his oath of office before assuming his duties and filed his oath approximately ten months later.  Even if ten months was an unreasonable delay, Viesselman was a de facto officer whose official acts and appointments were valid.  Id.

Appellant makes a similar argument with respect to Viesselman's failure to file a bond.  But the county attorney's office no longer holds a bond requirement. Minn. Stat. § 388.01; see 1991 Minn. Laws ch. 326, § 20 (removing bond requirement).  Finally, appellant argues that if the assistant county attorneys are not required to file an oath every term, then the election of officials by the people is usurped.  This argument fails to recognize that assistant county attorneys serve at the pleasure of the county attorney who is elected every four years.  Minn. Stat. § 388.10. Thus, there is no usurpation of elections.

Right to counsel

Appellant argues that he was entitled to counsel and that because he did not waive his right to counsel, his conviction should be reversed.

The United States and Minnesota Constitutions guarantee criminal defendants a right to counsel.  U.S. Const. amend. VI;  Minn. Const. art.  I, § 6.  The right to counsel and other procedural protections afforded criminal defendants are generally triggered by the threat of incarceration.  State v. Dumas, 587 N.W.2d 299, 301 (Minn. App. 1998) (citing Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 2012 (1972); Frank v. United States, 395 U.S. 147, 150, 88 S. Ct. 1503, 1506 (1969)), review denied (Minn. Feb. 24, 1999).

Appellant was charged with and convicted of a petty misdemeanor.  A petty misdemeanor is "a petty offense which is prohibited by statute, which does not constitute a crime and for which a sentence of a fine of not more than $300 may be imposed."  Minn. Stat. § 609.02, subd. 4a (2002).  Because appellant was not charged with a crime and did not face the threat of incarceration, no right to counsel attached.  Also, because appellant did not face the possibility of a criminal conviction or incarceration, there was no requirement that a voluntary and intelligent written waiver of counsel be entered in the record.  See Minn. R. Crim. P. 5.02, subd. 1(1), (4) (stating defendant is entitled to notice of right to counsel if charged with a felony, gross misdemeanor, or misdemeanor punishable by incarceration and waiver of counsel must be on record if defendant is charged with a felony or gross misdemeanor).

Appellant had a right to retain an attorney, but there was no requirement that he have counsel before his trial could proceed or that his waiver of the right to counsel be made on the record.  The record conclusively demonstrates that the district court provided multiple opportunities for appellant to retain an attorney.  At the June 10, 2003, hearing, appellant asked the court to delay arraignment until he found counsel.  The court agreed.  At the next hearing, appellant appeared without counsel, and the court asked if he was intending to proceed without counsel.  Without answering, appellant proceeded with his motion to dismiss.  On this record, it is apparent that appellant chose to proceed without counsel. 

Motion to remove district court judge

The district court treated appellant's "Notice and Demand for Recusation of Judge" as a notice to remove pursuant to Minn. R. Crim. P. 26.03, subd. 13(4), and denied the motion as untimely.  A posttrial appeal is not the appropriate way to obtain review of the denial of a motion to remove.  State v. Azure, 621 N.W.2d 721, 725 n.3 (Minn. 2001).  Appellant's remedy was to petition for a writ of prohibition. State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984); accord State v. Poole, 472 N.W.2d 195, 196 (Minn. App. 1991) (holding "[p]rohibition is the appropriate remedy for the denial of a motion to remove a trial judge for cause").

Prosecutorial misconduct

Appellant argues that the prosecutor committed misconduct by failing to disclose the addresses of the witnesses that the state intended to call at trial.  We apply a harmless-error analysis to determine whether prosecutorial misconduct warrants a new trial.  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

In felony and gross-misdemeanor cases, the prosecuting attorney is required to disclose to the defendant the names and addresses of the persons intended to be called as witnesses at the trial.  Minn. R. Crim. P. 9.01, subd. 1(1)(a).  But appellant was not charged with a felony or a gross misdemeanor; he was charged with a petty misdemeanor.  "[T]he procedure in petty misdemeanor cases shall be the same as for misdemeanors punishable by incarceration."  Minn. R. Crim. P. 23.05, subd. 3.

In misdemeanor cases, without order of the court the prosecuting attorney on request of the defendant or defense counsel shall, prior to arraignment or at any time before trial, permit the defendant or defense counsel to inspect the police investigatory reports.  Upon request, the defendant or defense counsel also shall be entitled to receive a reproduction of the police investigatory reports after the arraignment.  This obligation to provide a reproduction of the police investigatory reports may be satisfied by any method that provides to the defendant or defense counsel an exact reproduction of such reports . . . .

 

Minn. R. Crim. P. 7.03.

At the omnibus hearing, the prosecutor told appellant that the state intended to call Vath and Geiger as witnesses at trial.  The prosecutor also gave appellant copies of the police reports written by the officers.  The police reports indicate that the address of both officers is the Martin County Law Enforcement Center.  There is no basis for concluding that the prosecutor committed misconduct by failing to disclose the witnesses' addresses.

Sufficiency of the evidence

            Appellant argues that the evidence was insufficient as a matter of law to support the guilty verdict.

In considering a sufficiency of the evidence claim, our review is limited to determining whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jury to reach the verdict [it] did. We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was proven guilty of the charged offense. We must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary. 

 

State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002) (citations omitted).  When reviewing a sufficiency-of-the-evidence claim in a case heard before the court without a jury, we apply the same standard of review that is applied in a case heard by a jury.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979). 

            In Minnesota, 

 

[n]o person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions. Every driver is responsible for becoming and remaining aware of the actual and potential hazards then existing on the highway and must use due care in operating a vehicle. In every event speed shall be so restricted as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.

 

Minn. Stat. § 169.14, subd. 1 (2002).

 

            Both officers witnessed appellant's driving and testified about what they saw.  Vath testified that she saw appellant's vehicle in her rear-view mirror approaching at a high rate of speed and was concerned that it might not be able to slow down before hitting her squad car or the vehicle that had just passed.  After appellant's vehicle passed her squad car, she saw appellant's vehicle go onto the median wall, come down, and then go over the right rear of the car that had passed by.

Geiger testified that he spoke with appellant immediately after the crash.  Appellant told him that he was traveling 65 miles per hour and upon seeing the red lights of the squad car, he attempted to downshift, but lost control of the vehicle.  Both officers testified that appellant was driving too fast for the icy conditions of the road and was not using due care.  Based on the officers' testimony, the court as fact-finder could reasonably conclude that appellant was guilty of the charged offense.

            Affirmed.

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

[1] A copy of the recorded oath was included in respondent's appendix. Because it was recorded after appellant was convicted, it is not a part of the appellate record. See Minn. R. Crim. P. 28.02, subd. 8 (stating record on appeal consists of "papers filed in the trial court, the offered exhibits, and the transcript of the proceedings"). Generally, this court will not consider evidence outside of the record. State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001). The court may, however, take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Minn. R. Evid. 201(b)(2).  

[2] Minn. Gen. Stat. § 892, subd. 6 (1894).