, A18-0348

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1988,
A18-0348

Terry John Ascheman, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent (A17-1988),

and

State of Minnesota,
Respondent (A18-0348),

vs.

Terry John Ascheman,
Appellant.

Filed December 3, 2018
Affirmed
Bratvold, Judge

Swift County District Court
File Nos. 76-CV-16-428, 76-CR-16-422

Douglas D. Kluver, Kluver Law Office and Mediation Center, P.L.L.C., Montevideo,
Minnesota (for appellant)

Lori Swanson, Attorney General, Drew D. Bredeson, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Public Safety)

Danielle H. Olson, Swift County Attorney, Allison T. Whalen, Assistant County Attorney,
Benson, Minnesota (for respondent State of Minnesota)

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Considered and decided by Bratvold, Presiding Judge; Rodenberg, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this consolidated appeal from the district court’s decision to affirm the revocation
of appellant’s driving privileges and from appellant’s judgment of conviction for driving
while impaired (DWI), appellant argues that the district court erred in denying his motion
to suppress evidence, for two reasons: (1) the district court erred in overruling his objection
to hearsay testimony regarding what a complaining witness reported to police ; and
(2) police illegally stopped him while mowing the complaining witness’s field at 2:30 a.m.
in a rural area. Because the witness’s statements were not offered for the truth of the matter
asserted, and because police had reasonable articulable suspicion of criminal activity to
stop appellant, we affirm.
FACTS
At approximately 2:30 a.m. on Sunday, September 11, 2016, A.A.S. called police
and reported that someone was operating a tractor in her yard in rural Clontarf, Minnesota.
A.A.S. said the tractor was “really loud” and she did not know why it was there. Officer
Reigstad of the Benson Police Department drove to A.A.S.’s residence, along with two
deputy sheriffs from Swift County. Reigstad saw a tractor drive westbound on A.A.S.’s
driveway, and then turn northbound into an adjacent field, roughly 100 to 200 yards away
from the house. A.A.S. told Reigstad that she did not know who was driving the tractor.
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Reigstad drove into the field and activated his emergency lights and siren. The
tractor stopped and Reigstad identified the driver as appellant Terry Ascheman. Reigstad
testified that he stopped the tractor “to identify who was driving the tractor and see why he
was on [A.A.S.’s] property, to make sure everything was all right.” Reigstad, who had nine
years’ experience as a licensed peace officer, also testified that it was “very unusual” for a
farmer to be mowing at night, although he sometimes saw farmers harvesting or planting
at night.
Ascheman told Reigstad that he was mowing his cousin’s field and “trying to catch
up” on work after getting his tractor fixed. Ascheman admitted that earlier he had
consumed a few alcoholic drinks. A deputy sheriff determined that Ascheman appeared
intoxicated; Ascheman performed poorly on field sobriety tests and agreed to provide a
preliminary breath test. Police arrested Ascheman, who submitted to a second breath test,
which registered an alcohol concentration of 0.134.
The Minnesota Commissioner of Public Safety (commissioner) revoked
Ascheman’s license. Additionally, the state charged Ascheman with two counts:
(1) operating a motor vehicle under the influence of alcohol in violation of Minn. Stat.
§ 169A.20, subd. 1(1); and (2) driving, operating, or being in physical control of a motor
vehicle with an alcohol concentration of 0.08 or within two hours of the act in violation of
Minn. Stat. § 169A.20, subd. 1(5).
Ascheman, the state, and the commissioner appeared for a combined omnibus and
license revocation hearing, during which the district court heard testimony from Reigstad,
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Ascheman, and Ascheman’s spouse. 1 Ascheman identified one issue: evidence of his
intoxication must be suppressed because Reigstad lacked reasonable articulable suspicion
to justify stopping Ascheman in the field. Ascheman also made one hearsay objection
during the hearing, which was overruled. In October 2017, the district court issued an order
denying Ascheman’s challenge to the stop and affirming the license revocation. Ascheman
appealed the decision to deny rescission of his license revocation.
In December 2017, Ascheman and the state appeared for a pretrial hearing and
agreed to stipulate to evidence for a court trial, while preserving the pretrial issue for
appellate review under Minn. R. Crim. P. 26.01, subd. 4. In January 2018, the district court
issued an order finding Ascheman guilty on both counts. The district court subsequently
convicted him of count 2 and imposed a sentence of 365 days in jail with 305 days stayed
for two years. Ascheman appealed the judgment of conviction. We granted Ascheman’s
motion to consolidate the two appeals.
D E C I S I O N
I. The district court did not abuse its discretion when it overruled Ascheman’s
hearsay objection.

Ascheman argues that the district court erred in admitting hearsay testimony about
what A.A.S. told Reigstad. Ascheman also contends that he was prejudiced by this error
because the district court relied on A.A.S.’s statements in determining that the stop was

1 Ascheman testified that he did not remember what happened on September 11, 2016,
because he later had an aneurysm that affected his memory. Ascheman’s spouse confirmed
his testimony.
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justified.2 “Evidentiary rulings on hearsay statements are reviewed for clear abuse of
discretion.” State v. Burrell, 772 N.W.2d 459, 469 (Minn. 2009).
Hearsay is an out-of -court statement “offered in evidence to prove the truth of the
matter asserted.” Minn. R. Evid. 801(c). Generally, hearsay is not admissible. Minn. R.
Evid. 802. The rule excluding hearsay, however, does not apply if “the statement is
introduced merely to prove the fact of its being made and not to prove the truth of what the
communication contains.” State v. Schifsky, 69 N.W.2d 89, 92 (Minn. 1955). For example,
“[w]hen evidence that a tip was received is offered to explain why police have established
surveillance of the scene of an expected crime, the evidence is not hearsay.” State v. Ford,
322 N.W.2d 611, 615 (Minn. 1982). Additionally, an officer can rely on facts obtained
from another person “to form the basis for reasonable suspicion to stop.” Klotz v. Comm’r
of Pub. Safety, 437 N.W.2d 663, 664 (Minn. App. 1989), review denied (Minn. May 24,
1989).

2 All parties appear to assume that the Minnesota Rules of Evidence govern this issue. We
note, first, that the rules of evidence are inapplicable to questions of fact preliminary to the
admissibility of evidence. Minn. R. Evid. 104 (a); Minn. R. Evid. 1101(b)(1). The rules of
evidence also are inapplicable to probable cause hearings. Minn. R. Evid. 1101(b)(3). In
fact, this court specifically has recognized that “reliable hearsay is admissible on the issue
of probable cause” in implied consent hearings. Heuton v. Comm’ r of Pub. Safety , 541
N.W.2d 361, 364 (Minn. App. 1995). Sim ilarly, in an omnibus hearing, “[t]he court may
find probable cause based on the complaint or the entire record, including reliable hearsay.”
Minn. R. Crim. P. 11.04, subd. 1(c); see also State v. Ortiz, 626 N.W.2d 445, 450-51 (Minn.
App. 2001), review denied (Minn. June 27, 2001). Here, Ascheman raised a hearsay
objection to evidence offered at a combined implied consent/omnibus hearing where the
sole issue was suppression of evidence. Because we conclude that the objected-to evidence
was not hearsay, we resolve this issue without deciding whether the rules of evidence apply
to a combined implied consent/omnibus hearing.
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Here, Ascheman’s attorney objected when Reigstad testified to what A.A.S.
reported. The relevant testimony and objection included the following exchange during
direct examination:
Q. Okay. What specifically did that caller tell you was
happening?
A. There was a suspicious vehicle at the residence, and
they didn’t know who the person was.
Q. Okay. Did she say where on— where at her residence
this vehicle was?
A. It was by her house.
MR. KLUVER: Objection. Hearsay.
Q. Okay.
THE COURT: Overruled.
We conclude that the district court did not abuse its discretion in overruling
Ascheman’s objection to A.A.S.’s statements for two reasons. First, A.A.S.’s statements
were not offered to prove where Ascheman’s tractor was located, but were offered to prove
why Reigstad responded to A.A.S.’s property and investigated her complaint. See, e.g.,
Ford, 322 N.W.2d at 615 (holding that evidence police received from a reliable informant
“was needed to explain the action of the police” and was therefore not hearsay). Second,
A.A.S.’s statements also were offered, in part, to prove that Reigstad had reasonable
articulable suspicion to stop Ascheman. A.A.S. told Reigstad that she did not know the
person who was mowing near her house in the middle of the night. When A.A.S.’s
statements are considered in connection with other information that Reigstad acquired after
he arrived at A.A.S.’s house, as discussed in more detail below, Reigstad reasonably
stopped Ascheman. Because A.A.S.’s statements were not offered for the truth of the
matter asserted, but to prove why Reigstad proceeded to investigate and stop Ascheman,
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we conclude the statements were not hearsay. See, e.g., Klotz, 437 N.W.2d at 664 (holding
that trial court did not improperly rely on hearsay evidence in deny ing motion to suppress
because officers “may rely on facts which another person told him” as the basis for
suspicion to stop). Consequently, the district court did not err in overruling Ascheman’s
hearsay objection.
Respondent commissioner also argues that admitting the statements should be
deemed harmless error even if the statements were inadmissible hearsay because Reigstad
personally observed the tractor mowing on A.A.S.’s property. See Minn. R. Crim. P. 31.01
(“Any error that does not affect substantial rights must be disregarded.”). The
commissioner’s point is well-taken. The erroneous admission of evidence is harmless error
“when the evidence is cumulative or there is other extensive evidence connecting [ the
defendant] to the commission of the crime.” State v. McDonald-Richards, 840 N.W.2d 9,
19 (Minn. 2013) (quotation omitted). Because Reigstad personally observed the tractor
mowing A.A.S.’s field and his observations were admitted into evidence, any error in
admitting A.A.S.’s statements was harmless.
II. The district court did not err when it denied Ascheman’s motion to suppress
and determined that reasonable suspicion supported Reigstad’s stop of
Ascheman.

Ascheman contends that Reigstad illegally stopped Ascheman while he was
mowing in the field because the officer lacked any reasonable belief of criminal behavior.
We review questions of reasonable suspicion de novo. State v. Lugo, 887 N.W.2d 476, 487
(Minn. 2016). A district court’s factual determinations related to a limited investigatory
8
stop, however, “will not be set aside unless they are clearly erroneous.” Id. (quotation
omitted). Here, Ascheman does not contest the factual findings of the district court.
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. “Warrantless . . . seizures are
‘per se unreasonable unless they fall under an established exception’ to the warrant
requirement.” Ries v. State, 889 N.W.2d 308, 315 (Minn. App. 2016) (quoting State v.
Hummel, 483 N.W.2d 68, 72 (Minn. 1992)). One exception permits a police officer to
conduct a limited investigative seizure without a warrant if the officer has reasonable
articulable suspicion of criminal activity. Lugo, 887 N.W.2d at 486. This brief investigatory
seizure is often called a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).
In determining whether an officer had reasonable articulable suspicion to stop a
defendant, “the officer’s suspicion must satisfy an objective, totality-of-the-circumstances
test.” State v. Smith, 814 N.W.2d 346, 351 (Minn. 2012). This test asks whether “the facts
available to the officer at the moment of the seizure . . . [would] ‘warrant a man of
reasonable caution in the belief’ that the action taken was appropriate.” State v. Askerooth,
681 N.W.2d 353, 364 (Minn. 2004) (quoting Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880).
Reasonable suspicion requires “something more than an unarticulated hunch, [and] that the
officer must be able to point to something that objectively supports the suspicion at issue.”
State v. Davis, 732 N.W.2d 173, 182-83 (Minn. 2007).
Reasonable suspicion can be “based on information provided by a reliable
informant.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008). Minnesota courts
“presume that tips from private citizen informants are reliable,” particularly when they
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“give information about their identity so that the police can locate them if necessary.”
Davis, 732 N.W.2d at 183. There is a “d istin[ction] between anonymous and identifiable
informants.” Rose v. Comm’r of Pub. Safety, 637 N.W.2d 326, 328 (Minn. App. 2001),
review denied (Minn. Mar. 19, 2002). An officer can presume an identified informant is
truthful because she “provides sufficient information to locate [her] and hold [her]
accountable for providing false information.” Id. Here, A.A.S. identified herself to dispatch
and personally spoke to Reigstad, creating a presumption of reliability. See id.
Ascheman argues that Reigstad articulated no reasonable belief of a particular crime
to justify the stop and simply pulled the driver over “to see who was driving.” It is correct
that Reigstad testified that he stopped the tractor because he wanted to identify the driver
“and see why he was on [A.A.S.’s] property, to make sure everything was all right.” It is
also correct that the district court did not identify a specific crime of which Ascheman was
thought to be committing when it denied the motion to suppress.
But even “innocent activity might justify the suspicion of criminal activity.” State
v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). For example, an actual traffic violation
is not required. See Marben v. State, 294 N.W.2d 697, 699 (Minn. 1980). To establish
reasonable suspicion, an officer only needs to articulate particular and objective facts that
“by their nature, quality, repetition, or pattern become so unusual and suspicious that they
support at least one inference of the possibility of criminal activity.” State v. Schrupp, 625
N.W.2d 844, 847-48 (Minn. App. 2001) (emphasis added), review denied (Minn. July 24,
2001).
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Here, particular and objective facts, taken in totality, were so unusual that they
supported an inference of the possibility of criminal activity. See id. These facts include:
(a) A.A.S. reported to dispatch that an unknown person was on her property operating a
tractor in the middle of the night; (b) Reigstad spoke with A.A.S., who confirmed her
earlier report; (c) Reigstad saw Ascheman’s tractor mowing on A.A.S.’s field at about 2:30
a.m.; and (d) in Reigstad’s nine years of experience as a peace officer, it was “very unusual”
for farmers to mow grass late at night. See generally Appelgate v. Comm’r of Pub. Safety,
402 N.W.2d 106, 108 (Minn. 1987) (stating that an officer may suspect suspicious activity
on the basis of “all the circumstances,” which include “the officer’s general knowledge and
experience, the officer’s personal observations, information the officer has received from
other sources, the nature of the offense suspected, the time, [and] the location”). We agree
with the district court’s apt summary: “Other facts make [Ascheman’s conduct] seem
unusual such as [A.A.S.] noting there [was] no need for a tractor to be present, no
predetermined permission to be on her yard for access, and the time of the incident at the
early hours of the morning.”
Based on these particular and objective facts, Reigstad reasonably suspected
Ascheman’s conduct might be criminal, e.g., criminal trespass, theft of crops, disorderly
conduct, or even driving while impaired. See Minn. Stat. § 609.605 (2016) (trespass);
Minn. Stat. § 609.52 (2016) (theft); Minn. Stat § 609.72 (2016) (disorderly conduct); Minn.
Stat. § 169A.20, subd. 1 (driving while impaired). Reigstad’s failure to testify to these
particular offenses at the omnibus hearing does not persuade us that he lacked reasonable
suspicion. Because Reigstad had reasonable suspicion sufficient to justify the stop, we
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conclude that the district court did not err in denying Ascheman’s motion to suppress. We
therefore affirm both the order den ying rescission of the license revocation and
Ascheman’s judgment of conviction.
Affirmed.