This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-888

 

 

ISD #381,
Respondent,

vs.

Ross Olson,
Appellant.

 

 

Filed January 16, 2001

Affirmed
Foley, Judge
*

 

St. Louis County District Court

File No. C600600714

 

 

Gunnar B. Johnson, Clure, Eaton, Butler, P.A., 222 West Superior Street, Suite 200, Duluth, MN 55802 (for respondent)

 

Ross Olson, 2365 East Flynn Road, Duluth, MN 55804 (pro se appellant)

 

Considered and decided by Crippen, Presiding Judge, Randall, Judge, and Foley, Judge.


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges the district court’s issuance of a harassment restraining order against him, arguing, among other things, that (1) the evidence was insufficient; (2) the district court erred in admitting hearsay evidence and limiting appellant’s cross-examination of a witness; (3) a witness was not properly sworn in; and (4) he was denied his right to a jury trial.  We affirm.

FACTS

            On April 5, 2000, appellant Ross Olson met with North Shore Elementary School Principal Patricia Driscoll to re-enroll his son in school.  Appellant became angry when he was told that the class was at full capacity and his son would not be able to attend North Shore Elementary.  He shouted that he was going to leave his son at the school all day. Driscoll told him that was not possible.  Appellant then pointed at his son and said “you are going to sit right here all day.”  Before appellant left the school, he yelled at Driscoll, pointed his finger, and said that he would return in five minutes with witnesses. Appellant’s statement “frightened and intimidated” Driscoll enough that after he left with his son, she called 911.  Appellant did not return to the school.

            Appellant alleged that he did not yell at Driscoll, but that she yelled at him and his son.  He also denied saying he would return in five minutes.  Appellant admitted that he said he was going to find witnesses and that he told his son to stay in the principal’s office.

            This incident was not the first contact between appellant and the school.  On September 29, 1999, appellant went to North Shore to question teachers about why his son was not enrolled in computer classes.  Driscoll was not present, but she testified that appellant yelled at two teachers; appellant denied this. 

            In an October 6 letter, Driscoll responded to appellant’s questions regarding the computer class.  She also directed appellant to control his anger, refrain from yelling at her staff, include her in his future meetings with members of her staff, and sign in at the office before entering the school.  Appellant responded to Driscoll in a letter dated October 17.  Driscoll felt threatened by the tone and wording of the letter.

            After the April 5, 2000, incident at the school, a harassment restraining order was filed against appellant.  The district court issued a temporary harassment restraining order, and a hearing was held later for a permanent harassment restraining order.  Appellant requested a jury at the hearing, stating “the ramifications and the ancillary things, bad things that can happen, are enormous to us.”  The district court denied appellant’s request and explained that he did not have a right to a jury trial.  After hearing testimony from Driscoll and appellant, the court granted a permanent harassment restraining order against appellant finding the following actions constituted harassment:  (1) appellant’s October 17, 1999, letter; (2) appellant’s statement that he would return to the school in five minutes; and (3) appellant yelling at North Shore employees. 

            Following the issuance of the order, appellant filed motions for a directed verdict and a new trial.  As part of the motions, appellant requested that his son intervene in the proceedings.  The district court denied all the motions.

D E C I S I O N

I.  Sufficiency of the Evidence

            Appellant first contends that there was no reasonable basis for granting the harassment restraining order.  We disagree.  This court reviews harassment restraining orders under an abuse of discretion standard.  See Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995) (finding that case law construing the Minnesota Domestic Abuse Act applies to the harassment statute); Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (detailing district court’s discretion to grant relief under the act).  A district court’s findings of fact will not be set aside unless clearly erroneous, and due regard is given to the district court’s opportunity to judge the credibility of witnesses.  Minn. R. Civ. P. 52.01. 

            If the district court finds that “there are reasonable grounds to believe that [a person] has engaged in harassment,” then a harassment restraining order may be issued.  Minn. Stat. § 609.748, subd. 5 (2000); Davidson v. Webb, 535 N.W.2d 822, 824 (Minn. App. 1995).  The order must be supported by sufficient evidence.  See Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).  A district court must base its findings in support of a harassment restraining order on testimony and any documents properly admitted.  Anderson, 536 N.W.2d at 911-12. 

             “Harassment,” in this context, includes

a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.

 

Minn. Stat. § 609.748, subd. 1(a)(1) (2000); Davidson, 535 N.W.2d at 824-25 (holding that sufficient evidence of harassment existed where restaurant manager raised voice, yelled and swore, poked at shopping center manager’s lip, and stated he would get manager).  Conduct does not have to be obscene or vulgar to constitute harassment.  Welsh v. Johnson, 508 N.W.2d 212, 216 (Minn. App. 1993). 

            The record establishes that (1) appellant went to the school on April 5, 2000; (2) when appellant was told that his son could not re-enroll, he became angry, yelled, pointed his finger at Driscoll, and threatened to return in five minutes; and (3) Driscoll interpreted appellant’s letter from October 17, 1999, as a threat.  Sufficient evidence exists in the record to support a permanent restraining order.  Therefore, the district court did not abuse its discretion in finding that appellant harassed staff at the school.

            Appellant contends that Driscoll was lying and that the court accepted her lies.  The court apparently believed Driscoll’s testimony over appellant’s version of what happened. Giving due regard to the district court’s opportunity to judge the credibility of witnesses, we cannot conclude that the court clearly erred in accepting Driscoll’s testimony and discounting appellant’s.  See Minn. R. Civ. P. 52.01.

II.  Evidentiary Issues

            Appellant contends the district court improperly relied in part on Driscoll’s hearsay statements in its finding of harassment.  We disagree.  Here, the majority of Driscoll’s testimony concerned her personal experiences with appellant and, therefore, it was not hearsay.  Based on Driscoll’s personal experiences alone, there was sufficient evidence to show appellant was harassing school staff.

            Appellant also contends the court improperly limited his right to cross-examine Driscoll.  We disagree.  The scope of cross-examination is limited to the subject matter of direct examination and to matters affecting the witness’s credibility.  Minn.  R. Evid. 611(b).  “The scope of cross-examination is largely left to the discretion of the trial court, and the trial court's ruling will not be overturned absent a clear abuse of discretion.”  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998) (citation omitted).  Additionally, a harassment restraining order hearing includes the right to cross-examine witnesses. Anderson, 536 N.W.2d at 911.  The object of cross-examining a witness “is to elicit facts to show the truth.”  Id.  “Cross-examination of a witness should not be restricted so long as it serves that purpose.”  Id. (citation omitted).  Here, the district court often allowed appellant to proceed over objection on issues that were marginally related to Driscoll’s direct examination. Objections were sustained only when appellant attempted to go into areas unrelated to the harassment restraining order or Driscoll’s credibility.  Given the court’s role in determining the scope of cross-examination, we cannot say that it abused its discretion in limiting appellant’s cross-examination of Driscoll.

            Moreover, evidence is only admissible if it is relevant.  Minn. R. Evid. 402. Relevance is defined as

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 

 

Minn. R. Evid. 401.  The district court limited appellant’s cross-examination because his questions were irrelevant.

III.  Witness Swearing-in

            Appellant contends that Driscoll was not properly sworn-in.  We disagree.  A harassment restraining order hearing requires that all witnesses must testify “under oath.” Anderson, 536 N.W.2d at 911.  The record reflects that at the hearing Driscoll was asked to come forward and be sworn-in by the clerk.  But the record contains no more evidence that the swearing-in took place.  Because no objection was made below, however, we assume on appeal that Driscoll was properly sworn-in. 

IV.  Constitutional Claims

            Appellant contends he was denied his constitutional right to a jury trial.  We disagree.  The right to a “full hearing” on harassment allegations includes “the right to present and cross-examine witnesses, to produce documents, and to have the case decided on the merits.”  Anderson, 536 N.W.2d at 911 (quotation omitted).  But section 609.748, subd. 5, states that a harassment restraining order is granted if “the court finds that there are reasonable grounds to believe that the respondent has engaged in harassment.” Therefore, the plain language of the statute contemplates the district court as the fact finder in a harassment hearing.  

            Additionally, there is no right to a jury trial unless a defendant may face more than six months in prison.  State v. Dumas, 587 N.W.2d 299, 301 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).  A party to a harassment restraining order proceeding cannot be subject to criminal charges unless he or she violates the restraining order.  See Minn. Stat. § 609.748, subd. 6 (2000).  Finally, the rules require a jury trial in the following situations:

In actions for the recovery of money only, or of specific real or personal property, the issues of fact shall be tried by a jury unless a jury trial is waived or a reference is ordered.         

 

Minn. R. Civ. P. 38.01.  A harassment restraining order is not included among this list. Therefore, appellant has neither a statutory nor a constitutional right to a jury.

            Finally, the school district contends appellant did not raise his remaining constitutional issues at the district court level.  Although appellant made a jury demand, he did not raise any other constitutional issues below.  It is well settled that this court is not required to review new theories on appeal and thus appellant’s additional constitutional claims are waived.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

V.  Other Claims

            Many of appellant’s other claims are outside the record, not adequately explained, or just plain perplexing. Therefore, we find that these are waived.  See Butcher, 563 N.W.2d at 780 (waiving issue where party fails to make and develop argument other than general assertion of error). 

            First, appellant claims that his son was properly joined in this lawsuit.  We disagree.  In fact, appellant’s request to join his son was denied.  Additionally, a respondent is defined in the harassment restraining order statute as “any adult[] or juvenile[] alleged to have engaged in harassment.”  Minn. Stat. § 609.748, subd. 1(b) (2000).  No claim was ever made that appellant’s son harassed any school personnel, and there appears to be no valid reason to join him in this case. 

            Next, appellant mentions in his reply brief that available witnesses were not called to testify.  Appellant was told numerous times by the court that he could subpoena witnesses for free or ask for a continuance to have those witnesses testify.  Appellant, instead, chose to proceed without them.  

            Finally, appellant asks for all recovery, restitution, redress, and remedy for monetary loss arising from this “evil lawsuit.”  Under this same section he asks for sanctions against Driscoll.  Appellant did not request such relief at the district court level, and he provides no basis for relief under the harassment restraining order statute. Therefore, we find these claims meritless and waived. 

            Affirmed.



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