This opinion will be unpublished and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

C8-00-1854

 

 

Kerry Zwirn,

Respondent,

 

 

vs.

 

 

Melvin B. Jones,

Appellant.

 

 

Filed April 10, 2001

Reversed and remanded

Toussaint, Chief Judge

 

Anoka County District Court

File Number C3002132

 

Kerry Zwirn, Honeywell Advanced Circuits, 1762 Terrace Road, Roseville, MN 55113 (pro se respondent)

 

William Lloyd Walker, The Romy Building, 1406 West Lake Street, Suite 209, Minneapolis, MN 55408 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Huspeni, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

Melvin B. Jones appeals the issuance of a harassment restraining order against him.  Appellant contends that (a) he was denied the hearing required by Anderson v. Lake, 563 N.W.2d 911 (Minn. App. 1995); and (b) his conduct did not constitute harassment.  Because appellant was not allowed to present witnesses, and the district court did not make specific findings, we reverse and remand.

FACTS

 

            Appellant Melvin B. Jones and respondent Kerry Zwirn are co-workers with the Advanced Circuits Division of the Honeywell Corporation.  During the past year, Zwirn has brought forth three claims of harassment by Jones.  All three incidents were reported to and investigated by the human resource department and the union.  The incidents could not be substantiated or confirmed.  No disciplinary action against Jones was taken. 

            After the last complaint in March 2000, Zwirn filed for a harassment restraining order.  During the hearing in May 2000, Zwirn presented testimony from two co-workers who observed the incidents, together with Zwirn and her husband’s testimony.

            Jones attempted to present the testimony of the union president and union steward.  The district court did not allow their testimony because they were not “direct” witnesses.  Also, the district court ruled as irrelevant photos and videotape Jones alleges shows Zwirn harassing him.  Jones attempted to introduce as evidence of an underlying incident that occurred two years ago where Zwirn’s husband was fired from Honeywell for addressing Jones in derogatory terms in front of 20-30 co-workers.  The district court, however refused to admit the evidence.

In May 2000, the district court issued a harassment restraining order against Jones that prevented Jones from working in the Advanced Circuits Division. 

After Jones’ motion to vacate the harassment order was denied; this appeal followed.

D E C I S I O N

 

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) (applying domestic abuse case law to harassment restraining orders). 

I.

Jones contends that the district court denied his right to present evidence and, ultimately, a right to a hearing.  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) (2000).  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 district court did not allow Jones to (1) question his witnesses, the union president and union steward, regarding the prior incident when Zwirn’s husband was fired for referring to Jones in a derogatory manner; and (2) present photos and videotape as evidence of Zwirn harassing Jones.  The district court stated that those witnesses were not eyewitnesses to the incident, and that the photos and videotape were not relevant to the proceedings.  Under the liberal relevancy standard provided by the rules of evidence, Jones’ witnesses and evidence were relevant to show bias or prejudice a motion.  See Minn. R. Evid. 401 ("'Relevant evidence' means evidence having any tendency * * * " to prove or disprove a material fact in issue); see also Minn. R. Evid. 401 1977 comm. cmt.  ("A slight probative tendency is sufficient under rule 401.").  Even relevant evidence is inadmissible if "its probative value is substantially outweighed by the danger of unfair prejudice * * *."  Minn. R. Evid. 403.  Given the history of the parties and underlying facts regarding the dismissal of Mr. Zwirn, the probative value of Jones’ evidence is not outweighed by the danger of unfair prejudice.  At the hearing, Jones should have been allowed to question his witnesses and present evidence regarding Zwirn’s conduct.  See Anderson, 536 N.W.2d at 911 (defendant has a right to produce documents and present witness in his defense).  At the very least, Jones should be allowed to make an offer of proof.  Minn. R. Evid. 103 (a)(2).  Accordingly, the district court erred by not providing Jones with the procedural safeguards provided for in Anderson.

No findings were made by the district court.  In issuing a harassment restraining order, it is necessary for the trial court to "find the facts specially."  Minn. R. Civ. P. 52.01.  The harassment restraining order consists of a preprinted form containing ten boxes with various findings that the district court judge may check off.  A review of the restraining order in this case shows that three of the boxes were checked, e.g., made uninvited visits, made threats, called petitioner abusive names.  After each of those various boxes, the district court stated, “As alleged in Petition.”  In this case, effective appellate review of the district court's determination that there were "reasonable grounds to believe that the respondent has engaged in harassment" is hampered without findings because there is no consideration of the parties’s biases resulting from their past history. Minn. Stat. § 609.748, subd. 5(a)(3).

Accordingly, we reverse the order of the district court and remand for findings.   Findings are necessary to afford the appellate court a clear understanding of the basis of the decision.  Reed v. Christman, 376 N.W.2d 742, 744 (Minn. App. 1985).

Reversed and remanded.

 



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