State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-2072

State of Minnesota,
Respondent,

vs.

Jeffrey Berger,
Appellant

Filed January 7, 2019
Reversed
Klaphake, Judge*

Ramsey County District Court
File No. 62-CR-16-5111

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

Lyndsey M. Olson, St. Paul City Attorney, Stephen J. Christie, Assistant City Attorney, St.
Paul, Minnesota (for respondent)

Pari I. McGarraugh, Kevin C. Ria ch, Jacob P. Harris, Fredrikson & Byron P.A.,
Minneapolis, Minnesota; and Teresa J. Nelson, ACLU of Minnesota, St. Paul, Minnesota
(for appellant)

Considered and decided by Halbrooks, Presiding Judge; Bratvold, Judge; and
Klaphake, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
In this appeal from his conviction of public nuisance, appellant Jeffrey Berger
argues that the public nuisance statute is unconstitutional, both facially and as applied to
him, and that the evidence i s insufficient to sustain his conviction. We reverse Berger’s
conviction on the basis that the state failed to prove beyond a reasonable doubt each
element required under the public nuisance statute.1
D E C I S I O N
Berger argues that his conviction is not supported by sufficient evidence. In cases
where direct evidence supports an element of the offense, our review is limited to “a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the convi ction, was sufficient to permit the jurors to reach the
verdict that they did.” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation omitted).
We assume that jurors believed the state’s witnesses and did not believe contrary evidence.
State v. Olhausen, 681 N.W.2d 21, 25 (Minn. 2004) . Further, this court will not disturb a
jury’s verdict if the jury, “while acting with proper regard for the presumption of innocence
and regard for the requirement of proof beyond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the charged offense.” Id. at 25-26.

1 Because we conclude that Berger’s conviction was not supported by sufficient evidence,
we do not reach his arguments regarding the constitutionality of the public nuisance statute.

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Berger was convicted of public nuisance in violation of Minn. Stat. § 609.74(2)
(2014). Under this statutory provision, the jury was required to find that (1) Berger acted
intentionally, (2) that by his intentional act, Berger interfered with, obstructed, or rendered
dangerous for passage any public highway or right-of-way, and (3) that Berger’s actions
occurred on July 9 , 2016 in Ramsey County. Here, we focus our analysis on the only
disputed element: whether the state proved that Berger’s personal act interfered with,
obstructed, or rendered dangerous for passage any public highway or right-of-way.
Upon review of the trial record, the evidenc e presented established the followi ng:
After the officer-involved shooting of Philando Castile, police learned that a large march
was planned for Saturday, July 9, 2016. A “group” was planning to march from the
intersection of University Avenue and Lexington Avenue towards the south and meet with
a group marching north from the governor’s mansion and “take over” I-94 near Lexington
Parkway. Demonstrators began marching around 7:30 in the evening, and marchers from
the south and north met at the Lexington bridge over I -94. Although police made efforts
to block the ramps onto both sides of I-94, demonstrators were able to take down a portion
of fence alo ng I-94 and enter the highway at around 8:00 p.m. At the same time that a
group of marchers began to enter the westbound side of the highwa y, eleven cars stopped
on the eastbound side of the highway, and the drivers locked and abandoned their vehicles
on I-94. At that time, the unfolding situation involved parked cars blocking the eastbound
lanes of I -94, demonstrators in the westbound lanes of I -94, and drivers attempting to
maneuver around the marchers in the westbound lanes. Because there were hundreds of

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people on the interstate in both directions, primarily in the eastbound lanes, p olice made
the decision to close I-94 between the I-35W and Highway 280 exchanges.
Officers told the demonstrators that they were violating the law and needed to leave
the highway at least 30 times and communicated to the demonstrators that they would not
be arrested if the group proceeded to a secondary st reet. Some demonstrators , but not
many, left the highway. Shortly before 10:00 p.m., the nature of the demonstration in the
eastbound lanes abruptly changed to riot-like conditions when a firework was thrown at
police officers, followed by rocks, chunks of debris and concrete, and bottles.
Berger was demonstrating on the westbound side, where the protests were non -
violent and demonstrators were standing with the ir arms linked together and chanting.
When it became clear to police that these demonstrators did not plan to leave and intended
to be arrested, they began making arrests on the westbound side of I -94. Photos showed
Berger in the middle of traffic lanes sometime after dark . Further, Berger told police he
was going to be arrested and t hat he was not going to leave. The arresting officer felt no
threat from Berger and ar rested him around 11:15 p.m. In total, around 40 people were
arrested and I-94 was closed for about five hours. Based on this evidence, the jury found
Berger guilty of public n uisance but rendered a verdict of not guilty for the unlawful
assembly charge. See Minn. Stat. § 609.705(2) (2014).
Berger argues that the state did not present sufficient evidence to establish that he
personally interfered with, obstructed, or rendered I-94 dangerous for passage. We agree.
Although the state established that demonstrators entered I -94 resulting in the police
decision to close the highway, the state failed to prove beyond a reasonable doubt that

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Berger entered I -94 before it was alread y “interfer[ed] with, obstruct[ed], or render [ed]
dangerous for passage” by several other circumstances that were unrelated t o Berger.
These circumstances proved that several vehicles were abandoned on the eastside of the
highway and that police closed I -94 for around five hours. Although a photograph from
the demonstration clearly places Berger in the traffic lanes of I -94, the photo was taken
after dark and presumably well after I -94 had already been shut down by police.
Accordingly, the state failed t o sufficiently prove that Berger’s personal actions—as
opposed to a myriad of circumstances unrelated to Berger —“interfer[ed] with,
obstruct[ed], or render[ed] dangerous for passage” I-94.
The state contends that the jury was presented with evidence that B erger was on I-
94 in the traffic lanes and that he remained there for a significant period of time even after
being asked to leave by polic e officers. The state argues that because the normal flow of
traffic on I -94 could not be restored until all pedestr ians—including Berger —left the
highway, the jury had a sufficient factual basis to conclude that Berger’s actions interfered
with I-94 in violation of the public nuisance statute. The state also notes, correctly, that it
was only required to prove that Berger’s conduct “interfere[d] with” a public highway, not
necessarily that his conduct obstructed traffic. But the state was required to prove that
Berger’s conduct violated the statute, and the evidence did not establish that Berger’s
personal actions “interfer[ed] with” I -94. The state did not present evidence that Berger
was one of the initial demonstrators who entered the highway resulting in its closure nor
did the state present evidence that Berger’s presence prevented the highway from re -
opening, as it remained closed for some time even after Berger had been arrested. Instead,

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the evidence presented by the state established that I-94 would have been “interfer[ed]
with” regardless of Berger’s presence on the highway, and even when viewing the evidence
in the light most favorable to the conviction, no evidence proved a specific act performed
by Berger which meets the requirements of the public nuisance statute.
Although the evidence presented by the state establishes that as a whole, the large
group of demonstrators violated the public nuisance statute, we must examine the record
with respect to the wrongful conduct of Berger as an individual. See State v. Johnson, 163
N.W.2d 750, 755 (Minn. 1968) (noting that when a record establishes the conduct of a
group, it is necessary to examine it with respect to each individual defendant’s conduct).
Here, we are not satisfied that the evidence presented by the state with respect to Berger’s
individual actions sufficiently supports his conviction of public nuisance. See State v.
Hipp, 213 N.W.2d 610, 617 (Minn. 1973) (reversing convictions for unlawful assembly
where the evidence did not establish the required elements for two individuals); Johnson
163 N.W.2d at 755 (reversing convictions where the record d id not satisfactorily contain
evidence of wrongful conduct committed by each defendant individually).
Finally, w e acknowledge the difficulties that law enforcement officers face in
situations such as this one involving large crowds of individuals. But, the requirement that
the state prove each element of each offense with respect to each individual does not leave
the state with no recourse. Rather, the state could have charged Berger with a different
offense, such as obstructing legal process or trespass. See Minn. Stat. § § 609.50, .605
(2014). But the state instead chose to charge Berger under the public nuisance statute, and

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the evidence presented at trial did not e stablish that Berger violated that statute.
Accordingly, we reverse.
Reversed.