                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0305

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Ronald Gene Kremmin,
                                      Appellant.

                                Filed January 3, 2017
                                      Reversed
                                   Connolly, Judge

                              Rice County District Court
                               File No. 66-CR-15-941


Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Fossum, Rice County Attorney, Terence J. Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


       Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and

Reilly, Judge.

                                   SYLLABUS

       The plain language of Minn. Stat. § 609.605, subd. 1(b)(8) (2014), which defines

the crime of trespass, requires both a command to leave the property and a command not

to return to the property.
                                       OPINION

CONNOLLY, Judge

       Appellant challenges the sufficiency of the evidence to support his conviction for

misdemeanor trespassing, arguing that the property owner did not tell him to leave the

property and that the plain language of the statute requires both a command to leave and a

command not to return. Because the plain language of Minn. Stat. § 609.605, subd. 1(b)(8),

requires both commands, we reverse appellant’s conviction.

                                          FACTS

       Appellant Ronald Gene Kremmin and his wife had separated at the time of the

charged offense, and appellant’s wife and son lived at the house of S.S. Appellant’s wife

knew S.S. because S.S. boards horses, including the horse co-owned by appellant and his

wife. On April 8, 2015, appellant went to S.S.’s property and took the co-owned horse

back to his farm. Later that day when S.S. and appellant’s wife realized the horse was

gone, they went to appellant’s farm to retrieve the horse. Appellant and S.S. met on the

roadway next to appellant’s farm, where appellant shouted profanities at S.S. S.S. told

appellant never to return to her property. At an unidentified time shortly after the incident,

S.S. told another horse-boarding client, P.M., about the incident.

       On April 15, 2015, P.M. saw appellant drive into S.S.’s driveway, pause briefly, and

drive away. P.M. told S.S., who called the police. A deputy took statements from S.S. and

P.M. P.M. described the truck she saw to the deputy, and the deputy drove past appellant’s

house to confirm that the description matched appellant’s truck. The deputy mailed




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appellant a citation for trespassing. In subsequent conversations between the deputy and

appellant, appellant made conflicting statements as to whether he entered the property.

       A jury heard the case in August 2015. Following the presentation of respondent

State of Minnesota’s case, defense counsel made a motion for a judgment of acquittal.

Defense counsel argued that respondent had not proved the elements of the trespass offense

because S.S. did not tell him both to leave the property and not return. The district court

denied counsel’s motion.

       Appellant subsequently testified at trial, discussing the incident at his farm and

admitting that he pulled into the driveway of S.S. on April 15, 2015. Later, in his closing

argument, defense counsel argued that appellant should be acquitted because S.S. never

told him to leave the property, despite the district court’s prior ruling that the state did not

have to prove that appellant was both on the property and told to leave. After respondent’s

objection, the district court noted it had already ruled on that issue and would not allow

defense counsel to continue with the argument. The parties questioned this ruling’s impact

on the jury instructions, and the district court added the following sentence to the jury

instructions over defense counsel’s objection: “It is not required that the defendant be on

the property when told not to return.”

       The jury found appellant guilty of trespassing, defense counsel renewed the motion

for a judgment of acquittal, and the district court denied the motion. Shortly thereafter,

defense counsel filed a motion for judgment of acquittal or new trial, which the district

court denied. In January 2016, the district court sentenced appellant. This appeal follows.




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                                             ISSUE

       Did sufficient evidence support appellant’s conviction despite a lack of proof that

S.S. told appellant to leave her property?

                                       ANALYSIS

       Where an appellant challenges the sufficiency of the evidence, “our review on

appeal 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).

“We will not disturb the verdict if the jury, acting with due regard for the presumption of

innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could

reasonably conclude that a defendant was proven guilty of the offense charged.” Bernhardt

v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted).

       Whether or not respondent had to prove that someone told the appellant both to

leave and not to return “presents a question of statutory interpretation that we review de

novo.” See State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013). “The object of all

interpretation and construction of laws is to ascertain and effectuate the intention of the

legislature.” Minn. Stat. § 645.16 (2014). If a statute is “susceptible to more than one

reasonable interpretation, then the statute is ambiguous and we may consider the canons of

statutory construction to ascertain its meaning.” Hayes, 826 N.W.2d at 804. If a statute is

unambiguous, we apply its plain meaning. Id. “[C]ourts should construe a statute to avoid

absurd results and unjust consequences[,]” and “reviewing courts should give a reasonable

and sensible construction to criminal statutes.” State v. Greenman, 825 N.W.2d 387, 390


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(Minn. App. 2013) (quotations omitted). Absurdity will not override the plain meaning of

an unambiguous statute “except in an exceedingly rare case in which the plain meaning of

the statute ‘utterly confounds’ the clear legislative purpose of the statute.” State v. Garcia-

Gutierrez, 844 N.W.2d 519, 526 (Minn. 2014).

       The statute at issue is titled “Trespass” and the relevant subsection reads as follows:

                     (b) A person is guilty of a misdemeanor if the person
              intentionally:
                             ....
                             (8) returns to the property of another within one
                     year after being told to leave the property and not to
                     return, if the actor is without claim of right to the
                     property or consent of one with authority to consent.

Minn. Stat. § 609.605, subd. 1(b)(8) (emphasis added).

       In the absence of an applicable statutory definition, “we generally give statutory

terms their common meaning.” State v. Rick, 835 N.W.2d 478, 483 (Minn. 2013). “In the

absence of a statutory definition, we look to dictionary definitions to determine the plain

meaning of words.” State v. Haywood, 886 N.W.2d 485, 490 (Minn. 2016). Black’s Law

Dictionary defines “leave,” in part, as “[d]eparture; the act of going away.” Black’s Law

Dictionary 1027 (10th ed. 2014). The American Heritage College Dictionary defines leave

similarly: “to go out of or away from.” The American Heritage College Dictionary 789

(4th ed. 2007).

       There is no evidence and respondent does not allege that appellant was on S.S.’s

property when she told him never to return to the property. Accordingly, he could not have

been told to depart that property—to leave, as the statute requires. The requirements that

one must be told to “leave” and “not to return” are joined in the statute by an “and,” which


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“ordinarily has a conjunctive meaning.” State v. Nelson, 842 N.W.2d 433, 440 (Minn.

2014).

         The statutory requirements of a command both to leave the property and a command

not to return ensure clarity and notice of exactly what behavior is prohibited. The rule of

lenity, while ordinarily applied to resolve an ambiguity, rests on a foundational principle

of criminal law that informs our analysis. Rick, 835 N.W.2d at 486. “The rule of lenity

vindicates the fundamental principle that no citizen should be held accountable for a

violation of a statute whose commands are uncertain, or subjected to punishment that is not

clearly prescribed.” Id. (quotation omitted). It is easily conceivable that one could get in

a fight away from home and instruct a listener not to return to the speaker’s property, and

for that listener not to know what property that exactly entails (for instance, if the speaker

was a landlord with multiple properties). As noted by Professor Wayne R. LaFave:

               [T]he common requirement of criminal trespass offenses is that
               the actor be aware of the fact that he is making an unwarranted
               intrusion, which serves to exclude from criminal liability both
               the inadvertent trespasser and the trespasser who believes that
               he has received an express or implied permission to enter or
               remain.

3 Wayne R. LaFave, Substantive Criminal Law § 21.2c at 234 (2d ed. Supp. 2016)

(quotations omitted). Requiring a command to leave the property and a command not to

return avoids criminalizing the conduct of an inadvertent trespasser by clearly identifying

the property from which the trespasser is prohibited.

         Further, the broader reading of the statute respondent asserts would permit private

citizens to criminalize more behavior of other private citizens. Under this particular



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subdivision of the trespassing statute, private citizens can instruct another to leave their

property and not return, rendering any return to the property a criminal act punishable by

up to 90 days in jail and up to a $1,000 fine. Minn. Stat. §§ 609.03 (3) (2014), .605, subd.

1(b)(8). Including a requirement of both a command to leave the property and a command

not to return allows property owners to protect their interests in privacy and control over

their property, but also prevents abuse of this unusual power by limiting the exercise of

such power to within the property owner’s own property lines.

       Respondent does not contest the plain-language definition of leave or suggest an

alternative reading to render the statute ambiguous.       Rather, respondent argues that

appellant’s interpretation is absurd. Respondent suggests that such an interpretation would

allow a trespasser to

              enter another person’s property without claim of right, root
              around the property, and then leave before the property owner
              has the opportunity to instruct the intruder to leave. Moreover,
              even if the property owner later located the intruder and
              instructed him to stay away, under appellant’s interpretation
              this would not be sufficient because the property owner neither
              told the intruder to leave the property nor did the owner state
              not to return while the intruder was on the property. As a
              result, the intruder could return time and time again, but leave
              before the property owner has the opportunity to instruct the
              intruder to leave.

       Respondent argues that “Minnesota courts will not give effect to plain meaning if it

produces an absurd or unreasonable result that departs from the purpose of the statute.”

Respondent then cites three civil cases to support this proposition, all of which are

distinguishable. First, respondent cites Anker, which noted that when the plain meaning of

a statute “utterly departs from the legislature’s purpose,” we may engage in a broader


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inquiry. Anker v. Little, 541 N.W.2d 333, 336 (Minn. App. 1995), review denied (Minn.

Feb. 6, 1996). But we must “exercise this authority sparingly and only when a party

demonstrates the statute’s plain language violates a clearly expressed goal of the

legislature.” Id. at 337. Anker went on to decline application of absurdity in favor of a

plain-meaning interpretation. Id. at 340. Respondent also relies on Olson, in which the

Minnesota Supreme Court again applied a plain-meaning interpretation. Olson v. Ford

Motor Co., 558 N.W.2d 491, 494-95 (Minn. 1997). Because the legislature’s purpose in

enacting the relevant statute in Olson was unclear, that court could not conclude the

statute’s plain language would produce “an absurd result that utterly confounds a clear

legislative purpose.” Id. at 495. Finally, respondent cites Wegener, which did apply the

absurdity doctrine, but did so because a literal reading of the statute at issue would have

rendered another statute largely inoperative and invalid “by giving it an unconstitutional

effect.” Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 615-17 (Minn. 1993).

       Respondent also relies on two unpublished criminal cases for support of its

interpretation. But unpublished opinions are not precedential. Minn. Stat. § 480A.08,

subd. 3(c) (2014). Additionally, both cases are distinguishable: they involved written

trespass notices from corporations, rather than an oral notice from a private citizen as in

appellant’s case. State v. Kelley, A15-0749, 2016 WL 1396699, at *1 (Minn. App. Apr. 11,

2016); State v. Montag, A12-0036, 2012 WL 4052814, at *1 (Minn. App. Sept. 17, 2012).

       The Minnesota Supreme Court discussed the absurdity doctrine in Hyatt v. Anoka

Police Dept., 691 N.W.2d 824, 827-28 (Minn. 2005). The supreme court concluded it

“could disregard a statute’s plain meaning only in rare cases where the plain meaning


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utterly confounds a clear legislative purpose.” Id. at 827 (quotation omitted). The supreme

court then referred to Wegener as “one such ‘rare case’” before noting that it was “not

aware of any other situation where [it has] allowed an absurdity analysis to override the

plain meaning of a statute.” Id. at 827-28 (emphasis added). We conclude that this is not

another such “rare case.” Trespass statutes serve to prevent violence, protect privacy

interests, and ensure control over one’s property. LaFave, supra, § 21.2. Application of

the statute’s clear language cannot be said to utterly confound that purpose. Rather, it adds

a procedural requirement for accomplishing that purpose.

       Additionally, other statutes proscribe respondent’s scenario and protect property

owners from trespass under similar circumstances. Minn. Stat. § 609.749 criminalizes the

return “to the property of another if the actor is without claim of right to the property or

consent of one with authority to consent.” Minn. Stat. § 609.749, subd. 2(3) (2014). Minn.

Stat. § 609.748 criminalizes “repeated incidents of intrusive or unwanted acts . . . that have

a substantial adverse effect or are intended to have a substantial adverse effect on the safety,

security, or privacy of another,” and allows victims to seek restraining orders. Minn. Stat.

§ 609.748, subd. 1(a)(1), subd. 2. While the plain meaning of Minn. Stat. § 609.605, subd.

1(b)(8) does not criminalize the behavior in respondent’s hypothetical situation, other

statutes provide protection for victims of such behavior.

       We conclude that the plain meaning of Minn. Stat. § 609.605, subd. 1(b)(8), is not

so absurd as to utterly confound the above legislative purpose, and as a result, respondent

must show appellant was commanded both to leave the property and not to return to

properly obtain a conviction. In the final analysis, it is not our role to change the law or


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add words to a statute. Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 438 (Minn.

2009). That is the role of the legislature. Id. at 440. There is no question S.S. never told

appellant to leave the property—neither party argues that she did, and no evidence

presented at trial would support that conclusion. When an appellant challenges the

sufficiency of the evidence, this court must conduct a “painstaking analysis” of the record

to determine sufficiency. Webb, 440 N.W.2d at 430. Here, that review is rather brief:

neither party presented evidence supporting the conclusion that S.S. told appellant to leave

the property or that he was even on the property at the same time as S.S. on April 8 or

April 15. The plain meaning of Minn. Stat. § 609.605, subd. 1(b)(8) and the paucity of

evidence presented to show appellant was told to leave the property require the reversal of

appellant’s conviction.

       Appellant also argues that the district court erred in denying the motion for a new

trial when it altered the jury instruction, prevented defense counsel from arguing he had to

be told to leave, and violated appellant’s rights to testify and to due process by limiting his

testimony regarding his dislike for S.S.       Because the plain meaning of Minn. Stat.

§ 609.605, subd.1(b)(8) requires proof that appellant was told to leave the property and told

not to return, the district court improperly altered the jury instruction. However, because

we reverse appellant’s conviction for insufficient evidence, we need not address this or

appellant’s remaining arguments challenging the district court’s denial of his motion for a

new trial.




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                                     DECISION

       The district court erred in determining that the state did not need to prove that

appellant had been told both to leave the property and not to return where the plain meaning

of the statute requires proof of both statements. Seeing no evidence to prove appellant was

told to leave the property, we reverse appellant’s conviction.

       Reversed.




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