This opinion will be unpublished and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

C7-00-1358

 

Lori Keenan,

Respondent,

 

vs.

 

Theresa Oslund,

Appellant.

 

Filed February 20, 2001

Affirmed

Harten, Judge

 

Ramsey County District Court

File No. C9-00-100257

 

Roderick N. Hale, 270 Grain Exchange North, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

 

Lori Keenan, 100 North Milton Street, St. Paul, MN 55104 (respondent pro se)

 

            Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

            Appellant Theresa Oslund challenges the harassment restraining order issued against her.  She contends that (1) the referee’s findings of fact were insufficient to support the restraining order; (2) the acts that she was found to have committed do not fall within the statutory definition of “harassment”; (3) the referee denied appellant statutory right to cross-examine witnesses; and (4) the evidence presented at the hearing was insufficient to support the determination that appellant committed the alleged harassing acts.  We affirm.

FACTS

 

Respondent Lori Keenan filed a petition pursuant to Minn. Stat. § 609.748 (1998), to obtain a harassment restraining order against appellant Theresa Oslund.  In the affidavit accompanying the petition, respondent reproduced the contents of a journal she had kept for the purpose of documenting appellant’s alleged harassing activities.  Respondent’s journal reflected that appellant had engaged in activities such as repeatedly driving her car on the street alongside respondent’s home, using her car to follow respondent to her place of work, and calling respondent’s home and quickly hanging up without speaking.  The affidavit also stated that appellant had peered in respondent’s windows and that she had entered respondent’s property without permission.

            At the hearing conducted pursuant to Minn. Stat. § 609.748, subd. 3 (1998), before the district court referee, respondent testified that appellant had been engaging in the alleged harassing behavior for about two years.  Both respondent and her husband explained that appellant had been involved in an intimate relationship with respondent's husband prior to the alleged harassment.  In relevant part, respondent testified that appellant repeatedly drove alongside respondent’s home on several different days, all of which she had recorded in her journal.  Respondent testified that her neighbor had observed appellant walking around respondent’s home on March 28, 2000.  Respondent’s neighbor testified that he had observed appellant walking around respondent’s house and standing on respondent’s deck while reading respondent’s mail or newspaper, although he was unsure of the date he made these observations.  The neighbor also testified that he observed appellant jog beside respondent’s home and occasionally dart into the yard.  Finally, respondent’s husband testified that he had observed appellant driving by respondent’s home on different occasions.        

Appellant denied respondent’s allegations.  She stated that she may have jogged alongside respondent’s home in the past, but not for the purpose of harassing respondent.  Appellant explained that on many of the dates the alleged acts of harassment occurred, appellant had been elsewhere or otherwise could not have committed the alleged harassing acts.  Appellant produced witnesses to show that she had an alibi for many of the dates and times of the alleged harassing acts. 

Appellant cross-examined respondent.  The referee asked appellant if she had any questions for appellant’s other witnesses; appellant replied that she was inclined to ask respondent’s husband questions to demonstrate that she and respondent’s husband were no longer having an affair, thereby discounting her motive for committing the alleged harassing acts.  The referee informed her that “the only issue is [respondent],” to which appellant replied, “Yes, Okay.  So then we don’t need to worry about that.”  Appellant then continued to cross-examine respondent, after which she called her own witnesses.

            The referee found that (1) on or about March 28, 2000, appellant entered respondent’s property, and read respondent’s mail or newspaper, and (2) on occasions between September 1, 1999, and May 17, 2000, appellant drove or jogged alongside respondent’s home in order to harass or for no legitimate purpose.  The district court referee ordered appellant not to have contact with respondent and to stay away from appellant’s residence and place of work for a period of one year.  This appeal followed.

D E C I S I O N

 

1.                  Sufficiency of Findings

 

Appellant is correct in asserting that the district court referee must make particularized findings of fact and conclusions of law in order to issue a harassment restraining order under Minn. Stat. § 609.748 (1998).  “In all actions tried upon the facts without a jury * * * the court shall find the facts specially and state separately its conclusions of law thereon[.]”  Minn. R. Civ. P. 52.01.  “The findings of a referee, to the extent adopted by the court, shall be considered as the findings of the court.”  Id.  Indeed, under the Minnesota Domestic Abuse Act, which is construed alongside Minn. Stat. § 609.748, Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995), we have held that an order for protection cannot issue without a hearing and “specific findings on domestic abuse.”  Nohner v. Anderson, 446 N.W.2d 202, 203 (Minn. App. 1989).    But

[w]here it appears that the decisive issues have been decided by the trial court without a jury, the reviewing court is not required to reverse simply because the trial court might have gone into more detail in the explanation of its findings.

 

Peterson v. Johnston, 254 N.W.2d 360, 362 (Minn. 1977) (citation omitted).

Here, the referee found that appellant had been on respondent’s deck on or about March 28, 2000, and had passed alongside respondent’s home on various dates between September 1, 1999, and May 17, 2000, in order to harass or for no legitimate purpose.  The district court entered these factual findings on a pre-printed “harassment restraining order” form and ordered that appellant must stay away from respondent, respondent’s residence, and respondent’s place of work.  These findings sufficiently cover the basic issue as to whether harassment occurred.  Although the district court could have been more precise in its findings of fact, i.e., outlining the particular dates on which appellant passed alongside respondent’s home to harass, the absence of dates neither requires nor warrants reversal here, where the referee decided the basic issues.

2.                  Acts Falling Within the Statutory Definition of “Harassment”

Appellant argues that the acts complained of and found by the referee do not constitute “harassment” within the meaning of Minn. Stat. § 609.748 (1998). The construction of a statute is a question of law subject to de novo review by an appellate court.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).  The statute defines “harassment” as, among other things, “repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another * * *.”  Id. § 609.748, subd. 1(a)(1) (1998).[1]

Appellant claims that under the terms of the statute, respondent was required to prove that appellant intended to adversely affect the respondent’s safety, security, or privacy.  We have upheld issuance of a harassment restraining order, however, even though the district court did not make an explicit finding of intent where the district court’s findings included that the actor sped his car to where the victim was standing and angrily approached the victim.  Davidson v. Webb, 535 N.W.2d 822, 825 (Minn. App. 1995).  We held that these actions constituted reasonable grounds for the district court to believe that the actor intended to adversely affect the victim’s safety, security, or privacy.  Id.  Similarly, appellant’s repeated presence alongside and within respondent’s property provided the referee a reasonable basis to infer appellant’s malevolent intent, thereby placing appellant’s conduct within the meaning of statutory definition of “harassment.” 

3.                  Right to Cross-Examination of Witnesses

Appellant complains that the referee denied her right to cross-examine witnesses.  Under the harassment statute, a district court must hold a hearing prior to granting a restraining order.  Minn. Stat. § 609.748, subds. 3(a), 5(a)(3) (1998).  A hearing includes the right to present and cross-examine witnesses, to produce documents, and to have the case decided pursuant to findings required under the statute.  Anderson, 536 N.W.2d at 911.  Here, the record indicates that the referee specifically asked appellant if she had questions for any of respondent's witnesses, indicating that appellant was made aware of her right to cross-examine all respondent’s witnesses.  Although appellant cross-examined respondent, she voluntarily chose not to cross-examine respondent’s other witnesses.  And because appellant voluntarily chose to forgo her statutory right to cross-examine respondent’s witnesses, she waived that right.  Thus, the referee did not err.  Cf. In re Welfare of G.L.H., 614 N.W.2d 718, 724 (Minn.) (parent voluntarily and intelligently waived statutory right to counsel at termination-of-parental-rights proceeding), cert. denied, Jackson v. Ramsey County, 121 S. Ct. 403 (2000).

4.                  Sufficiency of Evidence

A district court referee may grant a restraining order upon finding that there exist “reasonable grounds” to believe that the actor has engaged in harassment toward the alleged victim.  Minn. Stat. § 609.748, subd. 5(a)(3) (1998).  When a referee makes findings of fact, those findings “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  A reviewing court gives great deference to a trial court’s findings of fact because the trial court has the advantage of hearing testimony, assessing credibility of the witnesses, and developing a thorough understanding of the circumstances unique to the matter before it.  Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996). 

Here, the referee heard evidence from respondent, respondent’s husband, and her neighbor that appellant was repeatedly traveling alongside and within respondent’s property.  The referee apparently believed this testimony and inferred appellant’s intent to harass from these acts.  The referee apparently was not persuaded by appellant’s denials or by her attempts to establish alibi or mistaken identity. 

The determination as to the credibility of witnesses is the province of the factfinder.  Conroy v. Kleinman Realty Co., 288 Minn. 61, 66, 179 N.W.2d 162, 165-66 (1970).  We have held that evidence was sufficient to support findings of fact and a determination that a restraining order should issue where the testimony of two witnesses was in conflict, but the court nevertheless resolved the matter in favor of one of the parties.  See Davidson, 535 N.W.2d at 824.  Here, exercising her role as factfinder, the referee heard evidence from both sides and resolved the matter in favor of respondent.

We hold that the evidence was sufficient for the referee to determine that there were “reasonable grounds” to believe that harassment occurred and that a restraining order should issue.

Affirmed.



[1] The text of the statute has been amended such that the determination of the actor’s intent is no longer an absolute requirement, defining “harassment” as “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, * * *.”  2000 Minn. Laws ch. 476, § 1 (codified as amended at Minn. Stat. § 609.748, subd. 1(a)(1) (2000)).  The new language only applies to petitions filed on or after July 1, 2000.  Id. § 4.  Since this petition was filed on May 23, 2000, the new language does not apply to this case.