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This opinion will be unpublished and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
A18-1472

State of Minnesota,
Respondent,

vs.

Pamela Leigh Thesing,
Appellant.

Filed February 4, 2019
Reversed and remanded
Bratvold, Judge

Clay County District Court
File No. 14-CR-17-2307

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Brian J. Melton, Clay County Attorney, Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica May Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Halbrooks, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant Pamela Leigh Thesing keeps approximately ten chickens on her
residential property, which is in a legally platted subdivision. She appeals from her
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conviction for a misdemeanor violation of provisions in the Clay County Development
Code related to keeping chickens on residential parcels. Thesing argues that the complaint
is defective. In the alternative, Thesing argues that she is entitled to a new trial because the
district court failed to obtain a valid waiver of her right to counsel. Because the state’s
complaint against Thesing relied on code provisions that do not describe a crime and
expressly do not apply to Thesing’s legally platted property , we conclude that the
complaint is fatally d efective. We reverse and remand with instructions to vacate the
conviction.
FACTS
In the fall of 2016, Clay County planners “received several reports regarding the
presence of chickens on the property of Pamela Leigh Thesing.” The county gave Thesing
notice that the development code prohibited the keeping of livestock, including chickens,
on her property and instructed her to remove the animals. When Thesing failed to do so,
police issued a misdemeanor citation for a violation of the development code.
Thesing first appeared in district court on August 29, 2017, and was appointed a
public defender. At a plea hearing on January 3, 2018, Thesing pleaded not guilty and asked
to discharge her counsel. The court inquired whether Thesing intended to represent herself
or if she wanted to attempt to secure substitute counsel; Thesing said that she wanted to
“take a few days to research that or to call around.” The court scheduled a pretrial hearing
for January 26, 2018, and adjourned proceedings. Thesing appeared without counsel at the
January 26 hearing, but the court did not discuss whether she intended to represent herself
or whether she was still searching for an attorney.
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Thesing filed a motion to dismiss the charge against her. Four days before the
motion hearing, on May 3, 2018, the state filed a formal complaint charging Thesing with
a misdemeanor based on the allegation that Thesing kept chickens on her property in
violation of the county development code. At a contested motion hearing on May 7, 2018,
Thesing again appeared without counsel and argued her motion to dismiss. After hearing
Thesing’s argument, the court asked whether she intended to obtain private counsel or
represent herself. Thesing stated that she could not afford private counsel and that it was
her intention to proceed on her own. No further discussion on the matter was had. In a
subsequent written order, the district court denied Thesing’s motion.
A jury found Thesing guilty of this offense after a trial on July 10, 2018, and the
district court sentenced her to a stayed 30- day jail term and 90 da ys of unsupervised
probation. Thesing appeals.
D E C I S I O N
Thesing argues, and the state concedes, that her conviction must be reversed because
the citation and complaint filed in this matter do not actually define a crime or describe any
criminal behavior. Although this court is not bound by the concession of the parties, 1 we
agree and reverse Thesing’s conviction. Whether Thesing’s citation, complaint, or the
referenced portions of the development code actually define a crime or describe prohibited

1 See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (noting that this court
has a “responsibility . . . to deci de cases in accordance with law,” notwithstanding the
parties’ arguments).
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conduct involves the interpretation of zoning ordinances, which this court reviews de novo.
See State v. Reinke, 702 N.W.2d 308, 311 (Minn. App. 2005).
Due process requires that a criminal defendant “be informed of the nature and cause
of the accusation” against her. U.S. Const. amend. VI. The Minnesota Supreme Court
recognized long ago that “[i]t is a rule, however, applicable to all indictable offences, that
every fact material to the offence charged and necessary to constitute the crime, should be
stated with such clearness and certainty as to enable the accused to know exactly what he
is charged with.” State v. Ullman, 5 Minn. 13, 15, 5 Gil. 1, 3 (1860). A complaint or
indictment that fails to provide adequate specificity is “fatally defective.” State ex rel.
Webber v. Tahash, 152 N.W.2d 497, 501 (Minn. 1967.) Moreover, “a court is without
jurisdiction to convict a defendant of conduct that is not criminal.” Johnson v. State, 916
N.W.2d 674, 680 (Minn. 2018).
Here, the probable cause portion of the complaint sets out the factual allegation
which the state believed constituted a criminal offense—Thesing’s keeping of chickens on
her property. The issue in Thesing’s case, however, is whether the complaint actually
charged a criminal offense based upon this conduct. The charging portion of the complaint
filed against Thesing reads as follows:
Count 1: Keeping Animals on Residential Parcels
In Violation of: 8.3.15, subpart A.
MOC: Not applicable
ICR: 17005554
Penalty: 8.4.9, subpart A.

On or about October 4, 2016, within Clay County, Minnesota,
[Thesing], owner of parcels in a legally platted subdivision, did
keep animals on said parcels; to wit, chickens.
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Section 8 -4-9, subpart A, of the Clay County Development Code —referenced as the
“penalty” provision above—provides that a person who violates the development code or
fails to comply with its requirements is guilty of a misdemeanor and may be punished
accordingly. Clay County, Minn., Development Code § 8-4-9(A) (2012). Section 8-3-15
of the code, which Thesing was alleged to have violated, provides:
8-3-15 PROVISIONS FOR KEEPING ANIMALS ON
RESIDENTIAL PARCELS:

A. Residential Parcel: [A] parcel of land that meets the
criteria set forth in either in Minnesota Statute 273.13,
as amended, or by the Clay County Assessor for
classification as “residential” (Class 1) for property
taxation purposes. This definition does not apply to
parcels in legally platted subdivisions.

B. Animals on Residential Parcels: The keeping of
chickens . . . on residential parcels shall conform to the
following provisions: . . . .

Clay County, Minn., Development Code § 8-3-15 (2012) (emphasis added). Subpart B goes
on to list six regulations about the keeping of livestock, such as the number of animals per
acre and fencing. Id.
Explaining the basis for Thesing’s criminal liability under these code provisions,
the probable-cause portion of the complaint states:
Specifically, [section] 8-3-15 sets forth provisions for the
keeping of animals on residential parcels; by the Code’s
explicit definition in subpart A, “residential parcel” does not
apply to parcels in legally platted subdivisions, whereb y the
keeping of chickens is prohibited on Defendant’s property,
located in the legally platted Auditor’s Subdivision.

We note that the complaint states that Thesing’s property is in a legally platted subdivision.
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We conclude that this complaint is defective for two reasons. First, the charging
portion of the complaint indicates that Thesing’s conduct violates section 8- 3-15,
subpart A. This specific subpart does not actually describe any crime and neither imposes
obligations on county residents nor prohibits any conduct—it only provides a definition for
the term “residential parcel” as used within the remainder of the section. See id. As such,
there is no basis on which a person can be deemed to have violated or failed to comply
with subpart A for keeping chickens on her property. It does not, even in conjunction with
the penalty provision in section 8-4-9, define a crime of any sort or describe prohibited
conduct.
Second, Thesing’s property is explicitly excluded from the definition of “residential
parcel” found in subpart A because her property is in a legally platted subdivision. Id.
Consequently, none of the six regulations concerning the keeping of livestock listed in
subpart B are applicable to Thesing under the plain meaning of the ordinance. See Schiff v.
Griffin, 639 N.W.2d 56, 61 (Minn. App. 2002) (“When an ordinance is clear and
unambiguous, we are not permitted to look beyond its plain meaning.”). As noted in the
introductory text of subpart B, the provisions apply only to the keeping of livestock on
residential parcels, as defined in subpart A. In conflict with its position at trial, the state
now concedes that the cited ordinance does not apply to Thesing’s property. Reading
subparts A and B together, we conclude that none of the requirements or terms of section
8-3-15 are applicable to Thesing or her keeping of chickens by virtue of the undisputed
character of her property. Thus, the complaint fails to allege facts that demonstrate criminal
conduct or the commission of a criminal offense.
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This did not escape the notice of the district court, which voiced its own concerns
during trial:
[T]he Clay County Development Code that is alleged to
be violated here, the complaint lists subpart A. And subpart A
is really just a description of residential property. It’s not —I
can’t see how you can violate subpart A on its own.

And then in regard to the description listed in the
complaint, it’s referencing legally platted subdivisions when
subpart A says the definition does not apply to parcels of
legally platted subdivisions. So the name of the charge and the
description, as well as the subpart that’s referenced, don’t seem
to align as currently listed in the complaint.

Rather than dismiss the complaint, the district court remarked that it was difficult to craft
a jury instruction when “the elements aren’t clear exactly which part is alleged to be in
violation.”
In response to the district court’s concerns, the prosecuting attorney defended the
validity of the charge by arguing that “uses of your property are not allowed unless they
are specifically allowed.” We understand the state’s position at trial, as follows: because
the keeping of livestock on legally platted parcels is not expressly provided for, it is
implicitly unauthorized by the code and therefore a crime. But this argument is
unpersuasive and, indeed, the state has not seen fit to assert it on appeal. The state failed to
provide any citation for its premise that an unspecified use of land is per se impermissible.
The plain language of the code provisions referenced in the complaint do not support the
prosecutor’s claim.
Here, the scope of section 8-3-15 is clearly and expressly concerned with regulating
the keeping of domestic livestock on residential parcels and excludes parcels that are in
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legally platted subdivisions. An ordinary citizen would not read this ordinance restricting
the keeping of animals on residential parcels and conclude that its express exclusion of
legally platted subdivisions is the equivalent of including them. See Press v. City of
Minneapolis, 553 N.W.2d 80, 84 (Minn. App. 1996) (“Due process requires that an
ordinance that provides for criminal prosecution be drafted with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.”) (quotations omitted). To the
contrary, the most one could reasonably infer from this ordinance is that it is inapplicable
to legally platted subdivisions.
The citation and complaint in this matter were therefore “fatally defective” for
failing to define a criminal offense or describe any criminal behavior. See Webber, 152
N.W.2d at 501. Thus, the district court was without jurisdiction to convict Thesing of any
crime. See id.; Johnson, 916 N.W.2d at 680. Thesing’s conviction therefore must be
reversed. We remand with instructions to vacate the conviction.
Because we reverse Thesing’s conviction, we need not address whether she validly
waived her right to cou nsel. We take this occasion to state, however, that the record does
not appear to support such a finding. To ensure a valid waiver of counsel,
[A] court should comprehensively examine the defendant
regarding the defendant’s comprehension of the charges, the
possible punishments, mitigating circumstances, and any other
facts relevant to the defendant’s understanding of the
consequences of the waiver. The defendant should be made
aware of the dangers and disadvantages of self-representation,
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so that the record will establish that he knows what he is doing
and his choice is made with eyes open.

State v. Camacho, 561 N.W.2d 160, 173 (Minn. 1997) (citation and quotations omitted).
There was essentially no discussion between Thesing and the court concerning her
decision to represent herself, other than that she was opting to do so. And Thesing
expressed during the proceedings that she did not understand which code section she was
being charged with violating. One could not reasonably conclude on this record that
Thesing was adequately aware of the nature of her charges, her rights, or even the
punishment that it could entail.
Reversed and remanded.