State of Minnesota, Respondent,
Sarah Curtis Martin, Appellant,
Susan Ann Martinson, Appellant, and
Lucia Wilkes Smith, Appellant.
Court of Appeals of Minnesota.
Filed September 7, 2010.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Andrew M.
Small, St. Louis Park City Attorney, Tania K. M. Lex, Assistant City
Attorney, Colich & Associates, Minneapolis, Minnesota, (for respondent).
Robert J. Kolstad, John Kviong, Certified Student Attorney,
Minneapolis, Minnesota, (for appellants).
Considered and decided by Stauber, Presiding Judge; Lansing, Judge;
and Peterson, Judge.
Appellants challenge their convictions of trespassing at the
Knollwood Army Recruiting Station. Because the district court did not
abuse its discretion in sustaining objections to some of appellants'
testimony, we affirm.
The Knollwood Army Recruiting Station is located in the Knollwood
Mall in St. Louis Park. Its purpose is to "facilitate the enlistment
on a volunteer basis of young men and women who are looking to serve
their country." The United States Army leases the space. Sergeant
Jeremy Karr was the station commander at the office on the day of the incident.
On April 23, 2009, appellants Sarah Martin, age 69, Susan Martinson,
age 66, and Lucia Smith entered the Knollwood Army Recruiting Station
and stated that "their purpose was to enlist." They were accompanied
by a number of other persons who appeared to be of similar age and
were also apparently intending to enlist. The station staff,
believing that based on their appearances the three women did not
meet the age requirements, informed them that in accordance with Army
Regulation 601-210, "they did not meet the age requirements."
Sergeant Karr testified that after receiving the age requirement
information, the women "kind of went away from the age question to
you know we are here to enlist so that our grandkids don't have to
continue dying in foreign countries." Karr further stated that the
women had fliers, pamphlets, and signs that made clear that the
purpose of the women's visit to the station was the "protest of the
war in Afghanistan and Iraq."
Sergeant Karr testified that he was concerned about the safety of the
office because of the large number of people in the facility. He
stated that they were all asked to leave at least five times but they
refused. Following their refusal to leave the station, a staff member
called the St. Louis Park Police Department. Upon arrival of the
officers, Sergeant Karr informed an officer that he did not want the
people in the office. The officers informed the group that they would
be arrested if they refused to leave. All of the people left the
station except for the appellants. Appellants were subsequently
arrested for trespassing and charged with violations of Minn. Stat. §
609.605, subd. 1(b) (3) (2008). Appellants were tried by a jury on
September 15-16, 2009, and convicted. This appeal followed.
Appellants argue that the district court's repeated sustaining of
objections during appellants' direct testimony violated their
due-process rights to explain their conduct to the jury. The Due
Process Clauses of the United States and Minnesota constitutions
mandate that criminal defendants be treated with fundamental
fairness. State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992). This
standard of fairness requires that criminal defendants be "`afforded
a meaningful opportunity to present a complete defense.'" Id.
(quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528,
2532 (1984)). Criminal defendants have a due-process right to give
the jury an explanation of their conduct even if their motive is not
a valid defense. State v. Rein, 477 N.W.2d 716, 719 (Minn. App.
1991), review denied (Minn. Jan. 30, 1992). Although a "defendant's
constitutional right to give testimony regarding his intent and
motivation is very broad," it is "not without limitation . . . and
must be balanced against interests served by imposing strict
relevancy requirements on the defendant's testimony." State v.
Buchanan, 431 N.W.2d 542, 550 (Minn. 1988).
Appellants argue that the district court abused its discretion in
sustaining four objections during appellant Smith's direct testimony,
preventing her "from fully explaining her intent to the jury."
Evidentiary rulings rest within the sound discretion of the district
court. State v. Williams, 586 N.W.2d 123, 126 (Minn. 1998). This
court reviews a district court's evidentiary rulings for abuse of
discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
Appellants first contend that the district court abused its
discretion in sustaining the state's objection on relevancy grounds
when appellant Smith was describing the effect the number of war
deaths and injuries had on "her decision to enlist." Evidence is
relevant if it makes the existence of any fact that is of consequence
to the determination of the action more or less probable than it
would be without the evidence. Minn. R. Evid. 401; McKay's Family
Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147-48 (Minn. App. 1992),
review denied (Minn. Mar. 26, 1992). A district court's decision on
relevancy objections will not be reversed unless there is an abuse of
discretion. Bresson v. Stoskoph, 370 N.W.2d 80, 83 (Minn. App. 1985),
review. denied (Minn. Sep. 13, 1985); see also Raleigh v. Independent
Sch. Dist. No. 625, 275 N.W.2d 572, 576 (Minn. 1978) (a trial court
has "wide latitude in determining relevant evidence, and its decision
controls unless this discretion was abused").
Here, the testimony at issue consisted of the following:
I live in Minneapolis where one of my neighbors, who lives on a
corner that has lots of pedestrian and dog walking traffic, has a big
sign on his garage. He is on the corner house and many people walk
along his sidewalk. There is an American flag and a great big sign.
And on that sign he posts and continually updates the total of U.S.
soldiers in the wars in Iraq and Afghanistan. Today the number is
5,174 killed. I know that for every one of those 5,174 American
military deaths there are seven additional troops who have been
wounded, and 310,000 of those
Although the district court sustained the state's relevancy
objection, appellant Smith testified to her motivation for attempting
to enlist in the army, which in part included the following
testimony: (1) that a number of grandmothers and great aunts decided
that on zero recruitment day, rather than try to stop recruitment
they would "instead offer ourselves to apply for recruitment;" (2)
that she has taken other action "to end the illegal wars in Iraq and
Afghanistan," including letter writing, emailing congressmen,
leafleting, writing newspaper articles, and working on campaigns; (3)
that any person should have the right to apply for enlistment,
"whether that individual is choosing a military career or whether
that person is acting symbolically;" and (4) her niece's son enlisted
in the Minnesota National Guard and will probably be sent to
Afghanistan. Given this testimony by appellant Smith, the testimony
regarding her neighbor's sign is irrelevant because the neighbor's
sign does not bear on her intent and, thus, is excludable within the
district court's discretion. Even if the neighbor's sign did bear on
appellant's intent, the district court did not abuse its discretion
in excluding this evidence because it was also cumulative. See Minn.
R. Evid. 403 (providing that "[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the .
. . needless presentation of cumulative evidence").
Appellants next argue that the district court abused its discretion
in sustaining the state's foundation objection to testimony regarding
two newspaper articles because (1) the testimony was intended to
"clarify [Smith's] state of mind and intent" and (2) the district
court was ignoring the highly probative impact of the offered
testimony on appellant Smith's state of mind. Evidentiary rulings on
foundation are committed to the sound discretion of the trial judge
and are not the basis for reversal unless that discretion has been
clearly abused. State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999).
Here, appellants did not call the authors of the articles to provide
proper foundation, but instead attempted to testify as to the content
of the newspaper articles. See Kelzer v. Wachholz, 381 N.W.2d 852,
854-55 (Minn. App. 1986) (noting that district court's exclusion of
report on foundational grounds was within its discretion when
appellant had tried to admit report through someone with no knowledge
or relationship to report); see also Minn. R. Evid. 901 (discussing
authentication and identification requirements). Because appellant
Smith lacked the necessary knowledge to establish foundation for the
articles, the district court did not abuse its discretion in
determining that appellant Smith could not lay proper foundation for
Appellants also argue that the district court abused its discretion
in sustaining the state's foundation objection when Martinson
"attempted to explain how her knowledge of infant mortality rates in
Afghanistan motivated her to enlist." Appellant Martinson testified as follows:
I am particularly concerned about the children. UNICEF periodically
conducts studies on infant mortality rates and Under-Five mortality
rates by country worldwide. These statistics are available on the
Web, the Worldwide Web, by the UNICEF website. Afghanistan has the
second highest Under-5
Here again, as with appellant Smith's testimony, appellant Martinson
attempted to testify about a report of which she had no knowledge.
Moreover, because appellant Martinson only offered that she could
provide hearsay foundation for the report, the district court did not
abuse its discretion in determining that appellant lacked foundation.
Appellants contend that the district court erred in sustaining the
state's objection to testimony regarding what appellant Smith's
relative's experience with military recruiters had on her motive and
intent. A statement is hearsay if it was made outside of court and is
offered in evidence to prove what it asserts. Minn. R. Evid. 801(c).
Evidentiary rulings on hearsay statements are reviewed for clear
abuse of discretion. State v. Burrell, 772 N.W.2d 459, 469 (Minn.
2009). Appellant Smith offered the following testimony:
He enlisted in the Minnesota National Guard to give himself time and
income. And this winter, in December, January probably, he will be
sent probably to Afghanistan. He was hoping that by the time his
because he was recruited or because he was promised by a recruiter
when enlisted in the Guard that
The district court sustained the state's hearsay objection. Here, it
is clear, that appellant Smith was attempting to testify to what a
recruiter told her niece's son. That is clearly hearsay under Minn.
R. Evid. 801(c), and the district court did not abuse its discretion
in ruling the testimony inadmissible.
Finally, appellants cite to Rein and Brechon for the proposition that
they have a constitutional right to testify liberally regarding their
motive and intent for failing to leave the recruiting station when
asked to leave by the Sergeant Karr. These cases do state that a
criminal defendant has a due-process right to explain her conduct to
a jury. State v. Brechon, 352 N.W.2d 745, 751 (Minn. 1984); Rein, 477
N.W.2d at 719. But these cases also state that a district court
should exclude "irrelevant testimony" and "make other rulings on
admissibility as the trial proceeds." Brechon, 352 N.W.2d at 751;
Rein, 477 N.W.2d at 719-20 (stating that district court may impose
"reasonable limits on the testimony of each defendant").
Appellants argue that the "district court's failure to provide a
definition for a `claim of right,' an essential element of
[t]respassing, constitutes plain error." The district court has
"considerable latitude in selecting the language of jury
instructions." State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). This
court reviews jury instructions "in their entirety to determine
whether they fairly and adequately explain the law of the case."
State v. Peterson, 673 N.W.2d 482, 486 (Minn. 2004). "An instruction
is in error if it materially misstates the law." State v. Kuhnau, 622
N.W.2d 552, 556 (Minn. 2001). The district court's decision as to
what jury instructions to give is reviewed for abuse of discretion.
State v. Pendleton, 759 N.W.2d 900, 907 (Minn. 2009). Erroneous jury
instructions are reviewed under a harmless-error standard. State v.
Jackson, 746 N.W.2d 894, 898 (Minn. 2008). In assessing whether there
has been harmless error, the inquiry is not whether the jury could
have convicted the defendant without the error, but rather, what
effect the error had on the jury's verdict, "and more specifically,
whether the jury's verdict is `surely unattributable' to [the
error]." State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting
State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).
The elements of the crime of trespass are set forth in CRIMJIG 17.22.
Although "claim of right" is an element of trespass, it is not
defined within the trespassing instruction. Appellants requested that
the court use the following language: "A claim of right is defined as
a good faith claim by defendants that permission was given to them to
be upon the premises by a statute, rule, regulation or other law."
The district court rejected appellants' request and instead
instructed the jury as follows:
Third, the Defendant acted without claim of right. This means that
the State must prove either, a, that the Defendant did not believe
she had a legal right to remain on the property after the demand to
leave was made or, b, if the Defendant did so believe that such
belief was unreasonable. A claim of right can exist even though based
on a mistaken understanding of the law as long so the claim of right
is made in good faith and is reasonable.
In the comment to CRIMJIG 17.22, it is recommended that the jury be
instructed as follows:
A bona fide claim of right exists only when the defendant is acting
in good faith, as opposed to asserting a false claim. In order to
find the defendant had a bona fide claim of right, you must find that
the defendant believed he or she had a right to enter, and there were
reasonable grounds for such belief.
10A Minnesota Practice, CRIMJIG 17.22 cmt. (2006).
Here, the district court's instruction regarding "claim of right"
accurately states the law. See id. The district court's inclusion of
the phrase "mistaken understanding of the law so long as the claim of
right is made in good faith and is reasonable" does not materially
misstate the law. In fact, it includes all the requisite language and
fairly describes the element of claim of right.
Even if the district court erred in not following the exact phrasing
of either CRIMJIG 17.22, or appellants' recommended instruction, it
is harmless error, as the jury's conviction was unattributable to any
error. Evidence at trial showed that appellants entered the
recruiting station to purportedly enlist and were told by station
staff that, pursuant to the age-requirement regulation, they were
ineligible to enlist due to age and were asked to leave the property.
Based on this evidence, appellants had no claim of right to remain at
the station and if they believed that they did, their belief was not