State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0289

State of Minnesota,
Respondent,

vs.

Jacob David Jackson Boucher,
Appellant.

Filed December 12, 2022
Reversed
Wheelock, Judge

Hennepin County District Court
File No. 27-CR-20-24356

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

Kristyn Anderson, Minneapolis City Attorney, Amy J. Tripp-Steiner, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)

Tim Phillips, Law Office of Tim Phillips, Minneapolis, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Bratvold, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this direct appeal from the final disposition of a petty-misdemeanor violation of
state law prohibiting pedestrians from using a controlled-access highway, appellant argues
that the circumstantial evidence was insufficient to support the district court’s finding of
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guilt. Because the circumstances proved at trial are not inconsistent with a rational
hypothesis of innocence, we reverse.
FACTS
Respondent State of Minnesota charged appellant Jacob David Jackson Boucher
with a petty-misdemeanor violation of Minn. Stat. § 169.305, subd. 1(c) (2020), based on
Minn. R. 8810.0050 (2019) (order no. 30757), all eging that he had used a
“controlled-access highway” as a pedestrian. The district court heard Boucher’s case at a
bench trial on February 23, 2022. The following facts summarize the evidence presented
at trial.
The state called two law-enforcement officers as witnesses. First, Major Meagher
testified that on the evening of November 4, 2020, he was monitoring a large group of
demonstrators from a “command center” via cameras on “manned aircraft” that allowed
the officers to see what the pilots were seeing and via social-media livestream. He observed
the demonstrators enter the eastbound lanes of I-94 via the Cedar Avenue on- ramp in
Minneapolis. According to Major Meagher, the group included six lead and five to six
trailing vehicles that accompanied the pedestrian demonstrators. Once the demonstration
moved onto the interstate, state-patrol officers became concerned that the demonstrators’
presence posed a danger to themselves and motorists on I-94. The state-patrol
mobile-response team took action to end the demonstration and arrest the individuals on
the highway.
3
Major Meagher testified that the state patrol first shut down both eastbound and
westbound lanes of I-94. Next, officers detained the demonstrators and began to arrest and
cite them. Major Meagher testified that
we started from the east, approached the group on the east side
of eastbound 94. There was—the group was organized with
lead vehicles and trailing vehicles, so we approached the
trailing vehicles, asked them to get out of the vehicles, and we
towed the vehicles in the rear so we could secure the back area,
and we set up processing in that rear back area with troopers,
with squad cars, with thermal printers in their squad cars to
document the people who were arrested and cited and to issue
citations.

Eventually, Major Meagher went to the scene on I-94 to assist in person, where he
communicated with other law-enforcement officers and documented the signage posted on
the entrance ramps to I-94.
State patrol officer Lt. Gear testified next on behalf of the state. He explained that
he was a part of the mobile-response-team unit that responded to I-94 on the evening of
November 4. He testified that, as the on- scene supervisor, he oversaw the movement of
officers to create a “formation” around the demonstrators, and after the formation was
established, his role was to take photos with his smartphone to document the individuals
who were being arrested and cited. He described the processing of the demonstrators:
individuals were escorted from the encircled group on the highway and brought to a
processing area just to the west of the group; part of that process was documenting with a
photo, and “that was [his] role at that point.” Lt. Gear testified that he believes that if
officers encountered someone in a vehicle assisting the demonstration, that individual
would have been detained and placed with the larger group. Lt. Gear testified specifically
4
that he did not personally see Boucher as part of the group enterin g the interstate from
Cedar Avenue.
Boucher called two fellow demonstrators as witnesses. They each testified that they
were occupying a lead or trailing vehicle when the demonstrators entered I- 94, but they
received citations for using a controlled-access highway as a pedestrian. These witnesses
testified that they could not identify all of the other vehicle occupants who were part of the
demonstration, and neither of them testified that they observed Boucher in a vehicle at any
time during the demonstration on I-94 . The pedestrian-using-controlled-access-highway
charges were eventually dismissed for both witnesses.1
At trial, Boucher argued that the state did not meet its burden of proof beyond a
reasonable doubt to establish that he used I-94 as a pedestrian, as he could have been
occupying a vehicle or standing on the grassy area on the side of the on-ramp when he was
detained and arrested. The officer who arrested Boucher and placed him in the group of
detained demonstrators on I-94 did not testify, and none of the witnesses testified to
personal knowledge of whether Boucher used I-94 as a pedestrian or was in a vehicle before
encountering law enforcement. Furthermore, Boucher introduced into evidence the

1 The district court specifically noted in its trial findings that as of the date of Boucher’s
trial, one of the witnesses who testified at Boucher’s trial that she was in a vehicle during
the demonstration also had a pending charge of pedestrian using a controlled-access
highway from the same demonstration. The district court then noted that (1) the witness
was advised of her right not to testify because of her pending charge, but (2) she waived
that right and testified at Boucher’s trial that she was in a vehicle that evening and was not
a pedestrian on I- 94, and (3) the state dismissed her case the day after she testified in
Boucher’s trial.
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citation issued to him that night, which included vehicle information —make, model, and
license plate number— in addition to his personal information.
Boucher moved for judgment of acquittal at the close of the state’s case, and the
district court denied the motion. The court found Boucher guilty of the petty-misdemeanor
offense of using a controlled-access highway as a pedestrian and sentenced him to pay a
fine.
Boucher appeals.
DECISION
On appeal, Boucher argues that the evidence introduced at trial was insufficient to
support the district court’s finding of guilt beyond a reasonable doubt. The presumption
of innocence in a criminal trial is a fundamental principle. State v. Peterson, 673 N.W.2d
482, 486 (Minn. 2004). To uphold this principle, “the state [must] prove every element of
a charged offense beyond a reasonable doubt.” Id. “Given the presumption of innocence
and the state’s burden to prove the offense, a defendant has no obligation to present any
evidence and should not be put at risk of providing evidence that fills gaps in the state’s
case.” State v. Slaughter, 691 N.W.2d 70, 75 (Minn. 2005).
Our court recently decided a similar appeal to Boucher’s in State v. Olson, No.
A21-1742, 2022 WL 17086778 (Minn. App. Nov. 21, 2022). Olson participated in the
same demonstration in which Boucher participated on the evening of November 4, 2020,
when a group of more than 600 people walked onto I-94 with lead and trailing vehicles
book-ending the pedestrian demonstrators. 2022 WL 17086778, at *1-2. The district court
found Olson guilty of violating Minn. Stat. § 169.305, subd. 1(c). Id. Olson appealed and
6
challenged the sufficiency of the evidence. Id. at *2. We affirmed after examining the
circumstantial evidence and concluding that “Olson’s theories of innocence are based on
mere conjecture, and they are unreasonable in light of the circumstances proved as a
whole.” Id. at *6. The precedential opinion in Olson clarified that “a fact-finder is not
required to apply [the circumstantial- evidence standard of review] when determining
whether the state has proved a defendant’s guilt beyond a reasonable doubt at trial.” Id. at
*1.
Much like Olson, Boucher challenges whether the evidence was sufficient to
support the district court’s finding that he had violated Minn. Stat. § 169.305, subd. 1(c),
which provides:
The commissioner of transportation may by order, and
any public authority may by ordinance, with respect to any
controlled-access highway under their jurisdictions, prohibit or
regulate the use of any such highway by pedestrians, bicycles,
or other nonmotorized traffic, or by motorized bicycles, or by
any class or kind of traffic which is found to be incompatible
with the normal and safe flow of traffic.

At trial, the district court took judicial notice of the fact that the commissioner exercised
such authority by issuing order no. 30757, which is codified at Minn. R. 8810.0050, and
provides as follows:
Pursuant to the Laws of Minnesota 1959, chapter 439,
and after due consideration for safety and convenience of
public travel on the main roadways, entrance and exit ramps to
same on the national system of interstate and defense highways
in Minnesota, it is hereby ordered that the use of such main
roadways and ramps by pedestrians, bicycles, or other
nonmotorized traffic, or by any person operating any such
vehicle, is hereby prohibited.

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To aid our analysis, we first identify the elements of the offense. The district court
reasoned, and the parties do not dispute, that to prove Boucher’s guilt under Minn. Stat.
§ 169.305, subd. 1(c), the state had to prove the following elements:
1. The highway in question is a “controlled-access
highway”;
2. the Commissioner of Transportation prohibited the use
of the controlled-access highway by pedestrians;
3. The defendant was a pedestrian on the controlled-access
highway;
4. The pedestrian’s use of the controlled-access highway
was incompatible with normal and safe flow of traffic;
and
5. The incident took place in Hennepin County, Minnesota
on the date alleged.
“Pedestrian” is defined as “any person afoot or in a wheelchair.” Minn. Stat.
§ 169.011, subd. 53 (2020); see id., subd. 1 (2020) (“For the purposes of this chapter, the
terms defined in this section shall have the meanings ascribed to them.”).
For our analysis, we assume that the district court correctly identified the elements
of the charged offense because the parties do not contest this aspect of the district court’s
findings. And although it is not expressly stated in the district court’s trial findings, we
infer that the alleged offense occurred when the demonstrators entered and occupied I-94,
before law enforcement detained and arrested Boucher. Thus, the state had to prove that
the elements of the offense existed at the time the offense occurred.
8
Returning to the elements of the offense, Boucher does not dispute whether the state
established the first, second, and fifth elements of the offense. 2 Our review of the record
shows that the state introduced direct evidence of these three elements. Rather, Boucher
asserts that the state did not meet its burden to prove the third element: that he was a
pedestrian on I-94.3
The district court found that Boucher was detained with the group of pedestrians on
I-94 on the evening of November 4, 2020, but there is no direct evidence in the record to
establish that Boucher used I-94 as a pedestrian before he was detained and cited. The
state’s witness—Lt. Gear—testified that he encountered Boucher on I-94 after Boucher
was detained with the group of demonstrators. Lt. Gear testified only that he encountered
Boucher when he was processed and cited. An inferential step is needed to find that
Boucher used I-94 as a pedestrian before law enforcement detained him with the large
group of demonstrators. We must therefore evaluate whether the state proved the third
element of the offense—that Boucher used I-94 as a pedestrian—by applying the
circumstantial-evidence standard of review.

2 The parties do not dispute that Interstate 94 in Hennepin County is a controlled-access
highway on which pedestrian use is prohibited under the statute and rule.

3 Neither Boucher nor the state focused on the fourth element in their briefs or argument to
this court. We assume without deciding that if the state proved that Boucher used I-94 as
a pedestrian, then the fourth element would also be proved given the record establishing
that any person who used I-94 as a pedestrian during the demonstration that evening used
the controlled-access highway in a manner incompatible with the normal and safe flow of
traffic.
9
We apply the same standard of review to evaluate the sufficiency of the evidence in
bench trials as in jury trials. State v. Palmer , 803 N.W.2d 727, 733 (Minn. 2011). We
“carefully examine the record to determine whether the facts and the legitimate inferences
drawn from them would permit the [fact-finder] to reasonably conclude that the defendant
was guilty beyond a reasonable doubt.” State v. Griffin, 887 N.W.2d 257, 263 (Minn.
2016) (quotation omitted).
We review a conviction with “heightened scrutiny,” however, when the conviction
is based on circumstantial evidence. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn.
2010). Circumstantial evidence is evidence that requires a fact-finder to “infer whether the
facts in dispute existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599 (Minn.
2017) (quotation omitted). Circumstantial evidence differs from direct evidence in that it
“always requires an inferential step to prove a fact.” Id.
When a conviction is based on circumstantial evidence, we apply a two-step
circumstantial-evidence standard of review. Loving v. State, 891 N.W.2d 638, 643 (Minn.
2017). First, we identify the circumstances proved at trial. State v. Andersen, 784 N.W.2d
320, 329 (Minn. 2010). Second, we “determine whether the circumstances proved are
consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”
State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013) (quoting Palmer, 803 N.W.2d at
733).
Our inquiry is “not simply whether the inferences that point to guilt are reasonable,”
because appellate courts “give no deference to the fact finder’s choice between reasonable
inferences.” Id. (quotations omitted). Rather, the “[c]ircumstantial evidence must form a
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complete chain that . . . leads so directly to the guilt of the defendant as to exclude beyond
a reasonable doubt any reasonable inference other than guilt.” State v. Taylor, 650 N.W.2d
190, 206 (Minn. 2002); see also Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004)
(stating that circumstantial evidence “must point unerringly” to guilt (quotation omitted)).
At the same time, the circumstantial-evidence standard does not allow this court to reverse
a conviction “on the basis of mere conjecture.” Andersen, 784 N.W.2d at 330 (quotation
omitted).
We consider the circumstantial evidence “as a whole” when completing this step of
the analysis. Silvernail, 831 N.W.2d at 599; see also Andersen, 784 N.W.2d at 332 (“[W]e
do not review each circumstance proved in isolation. Instead, we must consider whether
the circumstances presented are consistent with guilt and inconsistent, on the whole, with
any reasonable hypothesis of innocence.” (quotation omitted)).
To apply the circumstantial-evidence standard, we first identify the circumstances
proved at trial. In doing so, we defer to the fact-finder’s “acceptance of the proof of these
circumstances and rejection of evidence in the record that conflicted with the circumstances
proved by the State.” Andersen, 784 N.W.2d at 329 (quoting State v. Stein, 776 N.W.2d
709, 714 (Minn. 2010) (plurality opinion)). In other words, we review conflicting evidence
in the light most favorable to the state. See id. at 330; State v. Tscheu , 758 N.W.2d 849,
858 (Minn. 2008).
The following circumstances were proved at trial:
• A group of more than 600 demonstrators entered I-94
from the Cedar Avenue on-ramp on the evening of
November 4, 2020.
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• The group included individuals who were pedestrians
and individuals who occupied about 12 vehicles, some
of which were at the front of the group and the rest of
which trailed the group.
• The state patrol shut down all lanes of traffic on that
section of I-94 and encircled the group of
demonstrators.
• Officers created a “formation” to detain demonstrators
that included pedestrian demonstrators who were
standing on I-94 and the on-ramp and some of the driver
and passenger demonstrators from the vehicles that
accompanied the march.
• At least two of the vehicle occupants were encircled and
cited by law enforcement.
• Boucher was detained in the group of demonstrators and
received a citation.
• Boucher’s citation included a vehicle make, model, and
license plate number.
• Lt. Gear credibly testified that as a part of the arrest
process, he encountered Boucher standing on I-94 after
Boucher had been detained by other law-enforcement
officers.
We turn next to the second step of our inquiry, determining whether the
circumstances proved at trial are consistent with a rational hypothesis of guilt and
inconsistent with any rational hypothesis of innocence. The circumstances proved are
consistent with guilt in that it is reasonable to infer that Boucher was detained with the
group of demonstrators who walked onto I-94 because he used I-94 as a pedestrian during
the demonstration. But Boucher argues that there is another reasonable inference
inconsistent with guilt that can be drawn from the circumstances proved—that is, that he
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was an occupant of one of the lead or trailing vehicles and did not use I-94 as a pedestrian
before being detained and cited by law enforcement.
Although the district court found that “it is a more reasonable and credible
explanation” that Boucher was a pedestrian on I-94 when he was arrested, we need not
accept the district court’s choice between reasonable inferences. See Silvernail,
831 N.W.2d at 599. The alleged violation with which the state charged Boucher took place
before he was detained, arrested, and cited. The circumstances proved include that officers
detained and cited demonstrators from vehicles in the same group as the pedestrian
demonstrators. Boucher’s citation included vehicle information for a 2018 Jeep Wrangler
along with his personal information.
We conclude that the circumstances proved are also consistent with the rational
hypothesis other than guilt that Boucher was occupying a vehicle when he was detained
and that he exited the vehicle onto the controlled-access highway at the direction of law
enforcement. T he circumstantial evidence here does not “form a complete chain
that . . . leads so directly to the guilt of the defendant as to exclude beyond a reasonable
doubt any reasonable inference other than guilt.” Taylor, 650 N.W.2d at 206. Thus, the
record evidence was insufficient to support the district court’s finding that Boucher used
I-94 as a pedestrian.
The record evidence in Boucher’s case is materially different from the record
evidence in Olson’s case. Boucher’s citation included vehicle information, and the record
evidence established both that the state’s law-enforcement witnesses conceded that officers
placed pedestrians and vehicle occupants into the same detention group on the interstate
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and that law enforcement detained and cited at least two vehicle occupants. The district
court’s findings noted that Boucher’s citation was introduced into evidence “to show that
law enforcement recorded vehicle information for Defendant Boucher, suggesting that he
may have been in a vehicle and was not a pedestrian.” Still, the district court found that
there was “insufficient evidence to support this theory of the case.” We disagree. The
record evidence supports the reasonable alternative hypothesis that Boucher was a driver
or passenger in a vehicle while participating in the demonstration , persuading us that
Boucher’s reasonable alternative hypothesis is not mere conjecture.
The state’s brief to this court addressed the alternative rational hypothesis that
Boucher was a vehicle occupant by making a statistical argument: “[I]f up to 48 of those
people had arrived in vehicle, it is not a rational inference in light of all the evidence that
Appellant was a passenger in a vehicle. Forty-eight people of the more than 600 protesters
would make up just 8% of the total group.” While the state’s statistical analysis may be
accurate, it supports and does not eliminate the reasonable alternative hypothesis that
Boucher was a vehicle occupant before law enforcement detained and cited him.
While the evidence here may be close to the evidence in Olson, it is not the same.
Our concern that even one innocent person is wrongly convicted warrants holding fast to a
principled review of the circumstantial evidence in this case. The state has the burden to
prove all elements of Boucher’s alleged offense beyond a reasonable doubt. As noted
above, we conclude that the third element of this offense required the state to prove that
Boucher used I-94 as a pedestrian before he was encircled by law enforcement and detained
14
with other demonstrators. Based on the circumstantial evidence as a whole, we conclude
that the state failed its burden of proof.
Because we conclude that the circumstances proved from the evidence at trial did
not exclude a reasonable inference consistent with Boucher’s innocence, we do not address
whether the district court erred in its interpretation of Minn. Stat. § 169.305, subd. 1(c),
which stems from Boucher’s argument that he could have been detained from the grassy
area on the side of the I-94 on-ramp.
Reversed.