                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-0334

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                  George Edward Wilson,
                                        Appellant.

                                 Filed December 21, 2015
                                        Affirmed
                                       Reyes, Judge

                              Hennepin County District Court
                                 File No. 27CR1413387

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

Susan L. Segal, Minneapolis City Attorney, Heather Robertson, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Mary F. Moriarty, Chief Hennepin County Public Defender, Paul J. Maravigli, Assistant
Public Defender, Minneapolis, Minnesota (for appellant)

       Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Kirk, Judge.

                         UNPUBLISHED OPINION

REYES, Judge

       Appellant argues that the district court erred by denying his motion to suppress

evidence obtained as the result of an illegal traffic stop. We affirm.

                                          FACTS
       On May 9, 2014 at 11:54 p.m., Officer Jeffery Beck was on patrol in Minneapolis.

The officer was traveling northbound on Second Avenue and stopped at a red light at the

intersection of 35th Street and Second Avenue. As the light controlling northbound

traffic on Second Avenue and facing the officer turned green, he began to enter the

intersection and observed a vehicle driven by appellant George Edward Wilson traveling

westbound on 35th Street.

       The officer observed appellant’s vehicle begin to slow for the intersection, fail to

stop at what he presumed was a red light because his light was green, and proceed to

make a right turn onto Second Avenue. The officer had to let off the gas to avoid

colliding with appellant’s vehicle. He acknowledged that he was not able to see the color

of the traffic light controlling westbound traffic on 35th Street and facing appellant.

Appellant’s alleged failure to stop at the red light at the intersection of 35th Street and

Second Avenue was the sole basis for the stop of appellant’s vehicle.

       Appellant testified at a contested omnibus hearing that the light controlling

westbound traffic on 35th Street and facing him was green when he turned right from

35th Street to head north on Second Avenue. Appellant stated that the light turned

yellow as he was turning. Appellant also testified that he saw the officer’s squad car

stopped at the intersection. But the officer was on patrol that night in an unmarked squad

car. The unmarked car had no light bar on the top, push bumper on the front, grill light

on the outside, or police markings on the exterior of the vehicle.

       When asked by the prosecutor whether he had been drinking the night of the

incident, appellant stated, “Earlier that evening I think I had a drink.” However,


                                              2
appellant also stated that he did not believe the alcohol he consumed affected his ability

to drive. As a result of the traffic stop, appellant was asked to submit to a breath test.

The results of the test showed that appellant had an alcohol concentration of 0.12.

       At the conclusion of the contested omnibus hearing, the district court found that

“the uncontroverted evidence in the case is that the defendant did not stop” at the

intersection. The court further stated that “the officer testified credibly that his light was

green.” Therefore, based on those two findings, the court found that appellant “ran a red

light,” which the court determined was a “clear traffic violation.” As a result, the court

denied appellant’s motion to suppress.

       Appellant waived his right to a trial by jury, and the parties submitted the case for

a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3. Based on the evidence

before it, the district court found defendant guilty of two counts of fourth-degree driving

while impaired. The district court sentenced appellant to 90 days at the Hennepin County

Correctional Facility but stayed execution of appellant’s sentence for two years and

ordered him to serve 30 days on electronic home monitoring. This appeal followed.

                                      DECISION

I.     The district court’s factual finding that appellant failed to stop at a red light
       was not clearly erroneous.

       Appellant argues that the district court erred by denying his motion to suppress

evidence obtained as the result of an illegal traffic stop. Specifically, appellant asserts

that he had a yellow light when he entered the intersection of 35th Street and

Second Avenue. Appellant claims that the district court erroneously concluded that



                                               3
because the officer “proceeded on a green light” appellant’s light was necessarily red

when he entered the intersection, and the officer had sufficient justification to stop

appellant. Because appellant asserts that his light was green, he contends that there was

no traffic violation justifying the stop of his vehicle. We disagree.

       “When reviewing a district court’s pretrial order on a motion to suppress evidence,

‘we review the district court’s factual findings under a clearly erroneous standard and the

district court’s legal determinations de novo.’” State v. Gauster, 752 N.W.2d 496, 502

(Minn. 2008) (quoting State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007)). “A [district]

court’s finding is erroneous if this court, after reviewing the record, reaches the firm

conviction that a mistake was made.” State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).

In addition, “determinations of credibility of witnesses at the omnibus hearing are left to

the [district] court, and those determinations will not be overturned unless clearly

erroneous.” State v. Smith, 448 N.W.2d 550, 555 (Minn. App. 1989) (citing State v.

Randa, 342 N.W.2d 341, 343 (Minn. 1984)), review denied (Minn. Dec. 29, 1989).

       The standard of review in this case is controlling. Appellant’s contentions

regarding when he entered the intersection and whether he had a yellow light are factual

disputes. While appellant’s testimony supports his version of events, the officer’s

contradictory account as to what occurred on May 9, 2014, supports the district court’s

findings. “Because the weight and believability of witness testimony is an issue for the

district court, we defer to that court’s credibility determinations.” State v. Miller, 659

N.W.2d 275, 279 (Minn. App. 2003), review denied (Minn. July 15, 2003). Therefore,




                                              4
because there are facts in the record to support the district court’s findings, we cannot say

that “the district court unequivocally erred.” Id.

       The Minnesota Supreme Court addressed a similar factual situation in State v.

Smith, 276 Minn. 565, 565, 150 N.W.2d 868, 868 (1967). The defendant in Smith

testified that, when he was in the middle of an intersection executing a left turn, the

traffic light facing him changed from green to yellow. Id. The officer who issued the

traffic ticket testified that “‘after the light turned green for [him,] approximately three to

four seconds after the change,’ defendant entered the intersection and made a left turn.”

Id. (quoting the officer’s testimony). The district court found the defendant guilty,

concluding that the light changed to red before the defendant entered the intersection. Id.

at 565, 150 N.W.2d at 868-69. On appeal, the supreme court affirmed, stating, “Upon the

record the court could have decided the fact question either way. . . . The rule governing

appellate review of fact issues compels affirmance.” Id. at 869-70; see also State v. Jobe,

361 N.W.2d 168 (Minn. App. 1985) (affirming conviction for going through a red traffic

signal even though the officer did not directly observe defendant’s traffic signal and

evidence supporting the conviction was therefore circumstantial). The only factual

distinction between this case and Smith is that, in the instant case, the officer did not

explicitly state for how many seconds the traffic light facing him had been green before

he observed appellant proceed through the intersection.

       The cases appellant cites in support of his position are inapposite. State v.

Anderson, 683 N.W.2d 818, 824 (Minn. 2004) (holding “that an officer’s mistaken

interpretation of a statute may not form the particularized and objective basis for


                                               5
suspecting criminal activity necessary to justify a traffic stop”); State v. George, 557

N.W.2d 575 (Minn. 1997) (vacating conviction because the stop was premised on

officer’s undisputedly mistaken belief that a traffic law was violated); Sarber v. Comm’r

of Pub. Safety, 819 N.W.2d 465, 472 (Minn. App. 2012) (discussing the absence of

support in record for one element of the underlying traffic violation); Pullen v. Comm’r

of Pub. Safety, 412 N.W.2d 780, 782 (Minn. App. 1987) (reversing because the district

court’s conclusion was not supported by either party’s version of events). Because the

district court’s factual findings are not clearly erroneous, we affirm.

       Affirmed.




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