Country View Mobile Home Park, Appellant, vs. Edward Oliveras, Respondent.

This opinion will be unpublished and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

A04-160

 

Country View Mobile Home Park,
Appellant,
 
vs.
 
Edward Oliveras,
Respondent.

 

Filed September 14, 2004

Affirmed; motion granted

Minge, Judge

 

Dakota County District Court

File No. C7-03-16207

 

 

Thomas F. DeVincke, Robert J. Borhart, Bonner & Borhart LLP, 1750 Pillsbury Center, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant)

 

Lisa R. Hollingsworth, Southern Minnesota Regional Legal Services, Inc., 15815 Franklin Trail Southeast, Prior Lake, MN 55372 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Harten, Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant manufactured-home park challenges the district court's ruling that it failed to prove the elements necessary to evict respondent resident.  Appellant also challenges the district court's exclusion of certain evidence.  Because the record does not support eviction, because the district court did not abuse its discretion in excluding hearsay evidence, and because other evidence the court excluded was irrelevant, we affirm.

FACTS

 

            Appellant Country View Manufactured Home Park owns and operates a manufactured-home community in Lakeville.  Respondent Edward Oliveras, who is primarily confined to a wheelchair, began leasing a site in the park in May 1998.  Subsequent to an incident at respondent's home in July 2002, police officers obtained a search warrant, searched his home, and in the course of the search discovered child pornography.  In September 2003, respondent pleaded guilty to possession of pornographic material involving minors.  On October 1, 2003, appellant served respondent with a letter notifying him that because of his guilty plea to possession of child pornography, his lease was terminated, and he was to vacate the property by October 31.  When respondent did not vacate, appellant initiated this action to evict him under Minn. Stat. § 327C.09 (2002).  At a November 24, 2003 hearing, the district court excluded a police report as hearsay and ruled that the Fifth Amendment to the U.S. Constitution precluded respondent from answering certain questions.  Based on the evidence at the hearing, the court observed that there was no evidence to support the termination of the lease, other than respondent's conviction for possession of child pornography.  The court also determined that the conviction, standing alone, was not an adequate basis for an eviction pursuant to Minn. Stat. § 327C.09, and did not allow appellant to recover possession of the land on which respondent's manufactured home was located.  This appeal followed.

D E C I S I O N

 

I.

The primary issue is whether the district court erred in concluding that respondent's possession of child pornography, standing alone, is not a basis for issuing a writ of restitution in a manufactured-housing park.  Generally, the scope of review of a case tried by the district court sitting without a jury is limited to determining whether the findings of fact are clearly erroneous and whether the district court erred in its legal conclusions.  Bohm v. Indep. Sch. Dist. No. 283, 358 N.W.2d 146, 148 (Minn. App. 1984).  Statutory construction is a matter of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

At the outset, we recognize that possession of child pornography is morally reprehensible and illegal.  See Minn. Stat. § 617.247 (2002) (making possession of child pornography illegal).  Clearly, society does not tolerate such conduct.  However, this is not a one-dimensional case.  This is a proceeding in which the appellant operated a manufactured-home park and leased space to respondent as a resident.  In these situations, the resident owns a manufactured home that is not affixed to or a part of the real estate, but is located at the leased site.  See Minn. Stat. § 327B.01, subd. 13 (2002) (defining manufactured home as "a structure, not affixed to or part of real estate"); Minn. Stat. § 327.14, subd. 3 (2002) (defining manufactured-home park as a "site . . . upon which two or more occupied manufactured homes are located").  Residents of manufactured-home parks are afforded more rights than a party to a traditional tenant-lease situation but fewer rights than those granted to homeowners who own their land.  See, e.g., Minn. Stat. §§ 500.01-.221 (2002) (estates in real property); Minn. Stat. §§ 504B.001-.471 (2002) (landlords and tenants).  Because manufactured-home park residents bear some similarities to traditional homeowners, consider a neighbor's discomfort over possession of child pornography by the person next door.  It is hard to imagine use of eminent domain or the police power to end the ownership rights of and forcibly remove the offender.  In recognition of this unique situation, the legislature has defined the balance between the rights of manufactured-home park owners and the residents.  See Minn. Stat. §§ 327C.01-.15 (2002).  

Minn. Stat. § 327C.09 provides several bases upon which a park owner may "recover possession of land upon which a manufactured home is situated."  Minn. Stat.   § 327C.09, subd. 1.  Subdivision 2 authorizes recovery for nonpayment of rent or utilities; subdivision 3 authorizes recovery for failure to observe laws or rules related to manufactured homes.  No such deficiencies are at issue here.  Subdivision 4 recognizes that park owners may establish rules and evict for rule violations.  In this case, appellant did not allege a rule violation or give respondent 30 days to cure any such violation, as required by the subdivision.  Subdivision 6 allows for eviction for repeated, serious violations.  This is also inapplicable because there is no allegation of repeated violations.  This leaves subdivision 5, which allows for such recovery where

[t]he resident acts in the park in a manner which endangers other residents or park personnel, causes substantial damage to the park premises or substantially annoys other residents, and has received 30 days' written notice to vacate . . . . To be effective, the notice must specify the time, date, and nature of the alleged annoyance, damage, or endangerment. A park owner seeking to evict pursuant to this subdivision need not produce evidence of a criminal conviction, even if the alleged misconduct constitutes a criminal offense.

 

Minn. Stat. § 327C.09, subd. 5.  Appellant brought its action for eviction pursuant to subdivision 5 based solely on respondent's conviction of possessing child pornography.  Appellant argues that respondent's conduct constituted annoyance and endangerment because respondent pleaded guilty to possession of child pornography, minors were present at his residence when he was arrested, and a resident of the park notified the manager that the arrest had occurred. 

            Appellant asserts that a person who pleads guilty to possession of child pornography should not be allowed in a community with children because such individuals are likely to commit other criminal acts.  We agree that possession of child pornography is a serious violation that is offensive to community values.  However, appellant's argument requires that we assume, as a matter of law, that every person convicted of possession of child pornography is such a danger to others and is such a substantial annoyance to his neighbors that he should be evicted from his neighborhood without proof of actual endangerment or a substantial annoyance or any rule putting residents on notice that possession of such material is a per se basis for eviction.  On this record we cannot determine that possession of child pornography is proof that a person constitutes a danger to others.  Minn. Stat. § 327C.09, subd. 5, does not set forth any per se categories of endangerment and substantial annoyance, although it is within the power of the legislature to do so.  We note that state law provides that leases have a statutory covenant that controlled substances, prostitution, and firearms offenses are a basis for eviction.  See Minn. Stat.    § 504B.171 (2002 & Supp. 2003).  The legislature has given lessees of home sites in manufactured-housing parks certain protections against eviction.  We are obliged to follow the law as enacted by the legislature and decline to accept appellant's per se position.

II.

            In the alternative, appellant argues that even if possession of child pornography does not constitute endangerment and substantial annoyance per se, the district court erred in finding that it failed to prove actual endangerment or substantial annoyance.  In addition to evidence that respondent possessed child pornography and that minors were present at his home, appellant offered two witnesses at trial.  The first witness was the manufactured-housing park manager.  She testified that she first became aware of appellant's criminal activity when a resident of the community gave her a copy of a newspaper article dated February 20, 2003.  The park manager stated that, once notified, she requested the police reports and gave notice to respondent that his lease was being terminated.  The park manager also testified that respondent's conviction was the sole basis for the lease termination.

            The second witness was Detective Mark Holden of the Lakeville Police Department who testified that he was assigned to respondent's criminal case after the initial arrest.  The detective stated that in the course of the interview, respondent admitted to the possibility that his computer contained pornography involving the depiction of minors.   

            The district court found that appellant failed to prove by a preponderance of the evidence that respondent caused endangerment or a substantial annoyance.  It found that appellant failed to prove that any minor residents of the park viewed the pictures or that any residents had been endangered or substantially annoyed by his activity. 

In evaluating appellant's challenge to the district court ruling, we do not assume the residents of Country View Mobile Home Park were unconcerned about appellant's conviction.  However, we do not assume that the district court erred in requiring evidence of substantial annoyance or endangerment.  For example, the record indicates that the offense occurred in July 2002, that the newspaper article was published in February 2003, and that the termination notice was given in October 2003.  This notice was given seven months after the article and more than 14 months after the offense.  With respect to endangerment, we assume that respondent was sentenced for his child pornography felony violation in accordance with the law and that if he was still a resident of the park, he was not incarcerated but on probation on such conditions as the criminal court determined appropriate.[1]  We conclude that based on this record, we cannot determine that the district court's finding of inadequate evidence was clearly erroneous.

III.

            Next, we consider whether the district court abused its discretion by not allowing the admission of certain questioning on cross-examination for impeachment purposes.  The question of whether to admit or exclude evidence is within the district court's discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  "Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error."  Id. at 46 (quotation omitted).  "A defendant's statements made in response to proper cross-examination reasonably suggested by the defendant's direct examination are subject to proper impeachment . . . ."  State v. Provost, 386 N.W.2d 341, 343 (Minn. App. 1986).

            The questioning at issue was based on the contents of a police report that was not admitted into evidence.  During the presentation of appellant's case, the district court sustained respondent's hearsay objection to the admission of the police report because the authoring officers were not present.  Apparently, the police report alleges that minors were consuming alcohol in respondent's home at the time of his arrest and that marijuana was found in the residence.  On direct examination, respondent agreed that pornographic materials were found in the bedroom of his home, but stated that he was the only person with access to the bedroom.  Further, he stated that no other residents of the community had come into contact with any of the pornographic material and that no one in the park was a victim of his crime.  On cross-examination, respondent acknowledged that there were minors at his home at the time of his arrest.  When appellant's attorney asked respondent if the minors were drinking, the district court directed respondent not to answer, stating that "We're getting into a criminal matter, and, you know, under his rights, he probably should remain silent."  The district court also refused to allow respondent to answer questions regarding marijuana.

            Appellant argues that it was improper for the district court sua sponte, to invoke respondent's Fifth Amendment right to be silent on behalf of the respondent.  Appellant further argues that, even if the invocation was not in error, the district court should have allowed the testimony for impeachment purposes.

            A witness "may invoke their Fifth Amendment right against self-incrimination in civil as well as criminal proceedings."  Estate of Stollmeyer v. May, 580 N.W.2d 58, 60 (Minn. App. 1998).  The privilege may be invoked if the information sought would have a tendency to incriminate the witness.  Minn. State Bar Ass'n v. Divorce Assistance Ass'n, 311 Minn. 276, 278, 248 N.W.2d 733, 737 (1976).  The witness is only required to demonstrate that "testimony [or other information] would provide a link in the chain of evidence required for prosecution and that a chance of prosecution exists."  Id.  (quotation omitted).

            We note that respondent never attempted to invoke his Fifth Amendment rights.  In fact, counsel for respondent informed the court that respondent had "already been convicted of the only crime that he's going to be convicted of."  Accordingly, the district court's invocation of respondent's Fifth Amendment rights and refusing to allow testimony on that ground was error.  However, even if error, the question remains whether the error was prejudicial.  See Minn. R. Civ. P. 61 (requiring harmless error to be ignored for purposes of disturbing a judgment or order).  Prejudice to appellant's case depends on whether the evidence was relevant.

Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  Minn. R. Evid. 401.  Here, appellant chose only to allege possession of child pornography as a basis for its eviction action.  It did not allege that respondent posed endangerment or substantial annoyance on the basis of furnishing alcohol to minors or possession of marijuana.  Eviction was not sought on that basis and evidence regarding possession of controlled substances was not presented.[2]  We conclude that because the questions appellant asked were not relevant to the case that the appellant was actually presenting, any error in refusing to allow this line of questioning was not prejudicial.

IV.

Finally, we consider respondent's motion to strike portions of appellant's brief, alleging that it contains factual assertions and references from a police report that was not admitted into evidence and therefore is outside the record on appeal.  The record on appeal consists of the "papers filed in the trial court, the exhibits, and the transcript of the proceedings." Minn. R. Civ. App. P. 110.01.  "An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below."  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  This court "will strike documents included in a party's brief that are not part of the appellate record."  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992) and judgment affirmed (Minn. Aug. 20, 1993).

Appellant asks this court to consider the contents of the police report as substantive evidence in reviewing the merits of its appeal.  Because the police report was properly excluded and is outside the record on appeal, we may not consider its contents and we grant respondent's motion to strike those portions of appellant's brief referring to the report.

Affirmed; motion granted.

[1] As an indication of risk to the community, the legislature has established certain sentences and required that communities be notified of the presence of certain sex offenders.  See Minn. Stat. § 609.108-09 (2002) (mandatory increased sentences for certain sex offenders); Minn. Stat. § 244.052 (2002) (notice of predatory offenders).  This notification and the criminal sentencing constitute the legal process the legislature has established that allows offenders to live in society while minimizing the danger to the community of their offending again.

[2] Appellant did not seek to evict respondent because of general misconduct or because of alcohol or marijuana matters.  It was appellant's decision to bring the eviction action solely on the basis of possession of child pornography.  Because respondent was not put on notice that such matters might be the basis for the eviction action, this matter was not argued or presented to the district court.