may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
State of Minnesota,
Lawrence T. Green,
Ramsey County District Court
File No. K5001581
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Foley, Judge.*
In this appeal from a conviction of violating an order for protection, appellant Lawrence T. Green argues that the trial court’s jury instructions on the elements of the offense and the definition of the required mental state did not encompass his defense. Green also argues that the court erred by declining to specifically answer a jury question about the necessary proof of his mental state. We affirm.
Green lived with his girlfriend, Diane Dau, in her home, from August 1996 until March 1998. Green moved out but continued to have contact with Dau. Dau was concerned about her physical safety because of the way Green acted when he was drinking, and she obtained two orders for protection (OFP) against Green. Green pleaded guilty to violating those orders by contacting Dau.
On February 8, 2000, Dau obtained a third OFP against Green. The following day, a Ramsey County sheriff’s deputy served the OFP on Green and explained to him that the order prohibited him from having any contact with Dau and would be in effect for one year unless modified or vacated in a court proceeding.
Green testified that when he was served with the OFP in February 2000, he knew what it was and threw it away without reading anything but the top of it. He acknowledged that he understood that the OFP prohibited contact with Dau even if she initiated it. Green testified that he had experience with the court system, including a divorce proceeding, child support matters, and OFPs, and that the court always provided notice to parties when anything happened. He admitted that he had not received notice from the court that the OFP had been dismissed. Also, when asked whether it was correct that he was aware that he was not supposed to be having contact with Dau, Green replied, “Well, yeah, I could say that.”
Dau testified that in March 2000, she contacted Green by telephone and told him that everything was “okay with the police,” meaning that she had gotten the OFP dismissed. Green testified that during the telephone conversation, he asked if everything was alright with the situation with the police and that Dau responded that everything was okay and the OFP had been dismissed. Dau, however, had not gotten the OFP dismissed, and it remained in effect.
Dau testified that in early April 2000, she and Green began living together at her house, and she gave him a key to the house. On May 13, 2000, Green telephoned Dau and said that he had forgotten his keys and would be coming to the house and that he needed $20 or $30. Dau testified that she refused to give Green the money, she could smell liquor on his breath, and Green became angry and started yelling at her. Green grabbed a mop out of her hand, threw it on the floor, and refused to allow Dau to walk past him. Dau called 911, and Green immediately left.
St. Paul Police Officer Michael Meyer responded to the 911 call. Meyer and his partner found Green about half a block from Dau’s house. The officers learned about the OFP when they ran a warrant check on Green. Green admitted that he had been at Dau’s house but said that he thought that the OFP had been dropped. Meyer detected an odor of alcohol coming from Green, but Green did not appear intoxicated. Meyer placed Green in the squad car and went to talk to Dau. Dau told Meyer that Green had “pushed his way in the house.” Meyer asked Dau if she had a copy of the OFP, and she produced her copy for him.
Dau and Green’s trial testimony that Dau told Green that she had gotten the OFP dismissed was inconsistent with a May 14, 2000, tape-recorded statement Dau made to Sergeant Neil Nelson. Nelson asked Dau, “Had you told him you had dropped the order for protection?” Dau replied, “No. The order for protection was never discussed between the two of us.” Also contrary to Dau and Green’s trial testimony, Dau told Nelson that Green had initiated contact with her.
Green also gave a statement to Nelson on May 14, 2000. When Nelson asked Green for his address and telephone number, Green gave the address and telephone number of his sister’s residence, where he had been living when Dau obtained the OFP.
Green was charged by complaint with violating an order for protection, beginning in February 2000 and continuing through May 13, 2000, in violation of Minn. Stat. § 518B.01, subd. 14(a), (d)(1) (1998).
Green requested the following jury instructions:
The statutes of Minnesota provide that whoever knowingly violates an order for protection granted pursuant to the Domestic Abuse Act * * * is guilty of a crime.
The elements of violation of an order for protection are:
First, there was an existing order for protection.
Second, [Green] violated a term or condition of the order for protection.
Third, [Green] knew of the order at the time of the violation.
The district court denied Green’s request.
During closing argument, the prosecutor argued:
[Green] knew the order for protection existed. He knew that because the Ramsey County deputy went to him and handed him the order for protection and told him exactly what it meant.
Defense counsel argued during closing:
[T]he state must prove that Mr. Green knowingly violated this order. In other words, his mental state, knowledge, must concur in time with the time he was having contact with Ms. Green. It’s not enough that he was served with the order. He knew of the order on February 9th when he was served. But the state must show that he knew of the order when he was having the contact with Ms. Dau.
In other words, you have to decide whether the state has proven beyond a reasonable doubt whether, in Mr. Green’s mind when he was having contact with Ms. Dau, whether he actually believed, actually believed, that there was an order for protection. The issue is not * * * what he should have believed. The issue is not what he should have believed, but what he actually believed.
* * * *
Secondly, the state maintains that Diane Dau’s testimony was such that she said Mr. Green initiated the contact. I suppose if that’s true you can conclude that maybe Mr. Green was guilty. But the fact of the matter is Ms. Dau has given inconsistent statements on that issue so there’s no way that you can convict Mr. Green of initiating the contact in this case based on Ms. Dau’s testimony because it was inconsistent.
In rebuttal, the prosecutor argued:
And the elements which the state has to prove I put up there. I’m not going to go over them again with you, but the element is that [Green] knew of the order. [Defense counsel] has indicated that there were other things the state has to prove. And the Judge will tell you that if you find each of those four elements that I told you proven beyond a reasonable doubt, [Green] is guilty.
The prosecutor reminded the jury to decide the case according to the evidence in the record and the law as stated in the court’s instructions and noted that counsels’ arguments might not accurately state the law and evidence. The prosecutor also argued that Dau and Green’s testimony was incredible, particularly the testimony that Dau initiated contact with Green, in light of evidence that Green had a stronger motive to initiate contact with Dau because his sister’s apartment was very small and Dau gave him money.
During deliberations, the jury sent a note to the trial court requesting clarification regarding the knowledge element of violating an order for protection. The jury asked:
Does the defendant not know of the order * * * if he in fact believes it has been lifted or must it be the case that a reasonable person would believe that it had been lifted?
Green asked the court to “instruct the jury that the reasonable-person standard does not apply in this case as it relates to the mental state of the defendant.” The court denied Green’s request and directed the jury “to refer * * * back to the definition and elements of the offense itself and to the definition of the word ‘know’” and to carefully reread the definition and elements of the offense and the definition of “know.”
The jury found Green guilty. The court sentenced Green to 21 months in prison but stayed execution of the sentence and placed Green on probation for five years.
The district court has discretion to refuse to give a requested jury instruction, and its decision will not be reversed absent an abuse of discretion. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). The district court is allowed ‘considerable latitude’ in choosing the language to be included in jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (citation omitted). A party is entitled to a requested instruction if there is evidence to support it, but the court is not required to give the instruction if the substance of it is already contained in the court’s charge. State v. Daniels, 361 N.W.2d 819, 832 (Minn. 1985). The jury instructions must be read as a whole, and if, when so read, they correctly state the law in language that can be understood by the jury, there is no reversible error. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).
Minn. Stat. § 518B.01, subd. 14 (1998), provides:
(a) A person who violates an order for protection issued by a judge or referee is subject to the penalties provided in paragraphs (b) to (d).
* * * *
(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates this subdivision:
(1) during the time period between the first of two or more previous convictions under this section or sections 609.221 to 609.224; 609.2242; 609.713, subdivision 1 or 3; 609.748, subdivision 6; 609.749; or a similar law of another state, the District of Columbia, tribal lands, or United States territories; and the end of the five years following discharge from sentence for that conviction[.]
The district court gave the recommended jury instructions:
The statutes of Minnesota provide that whoever violates an order for protection granted pursuant to the Domestic Abuse Act * * * and knows of the order, is guilty of a crime.
The elements of violation of an order for protection are: First, there was an existing court order for protection. Second, [Green] violated a term or condition of the order for protection. Third, [Green] knew of the order. * * *
* * * *
I have used the term “know” in defining the crime charged and in listing the essential elements that the state must prove. “To know” requires only that the actor believes that the specified fact exists.
10 Minnesota Practice, CRIMJIG 13.53, .54, 7.10 (1999 & Supp. 2000-2001). The language used in CRIMJIG 7.10 is identical to the language used in the definition of “know” set forth in Minn. Stat. § 609.02, subd. 9(2) (1998).
Green argues that the jury could have misconstrued the instructions as requiring only proof that he knew the order was issued, rather than proof that he knew the order was still in effect when he violated it, to satisfy the knowledge element. Green’s argument is not persuasive for two reasons. First, the instructions accurately stated the law set forth in Minn. Stat. §§ 518B.01, subd. 14, 609.02, subd. 9(2). In other contexts, the supreme court has held that the court did not err by denying a defendant’s requested instruction, which was intended to clarify the law as it applied to the facts of the case, when the instructions given accurately stated the law. See, e.g., State v. Mitchell, 577 N.W.2d 481, 494 (Minn. 1999) (district court did not err by instructing jury according to definition of intent set forth in Minn. Stat. § 609.02, subd. 9, and declining to instruct the jury that defendant must have intent to kill “at the time the shot was fired”); Peou, 579 N.W.2d at 475-76 (instruction that the murder and robbery must be part of a continuous transaction correctly stated the substantive law and provided the jury with a basis for understanding the intent required for a finding of guilt of felony murder; district court did not err by declining to instruct jury that it “must believe that the defendant intended to commit the crime of aggravated robbery prior to the assault” even though it might have further clarified the intent issue for the jury).
Second, Green’s argument is inconsistent with the way the case was presented to the jury. The only disputed issue in the case was the credibility of Dau and Green’s testimony that Dau initiated the telephone contact with Green in March 2000 and that Dau told Green that the order for protection had been dismissed. See State v. Safranski, 391 N.W.2d 44, 46 (Minn. App. 1986) (noting that defendant presented her theory of the case in opening statement and closing argument in holding that district court did not err by declining to give instruction requested by defendant).
Green’s contention that the state argued during closing and rebuttal that it was sufficient for the jury to find that Green knew about the OFP at the time it was issued to satisfy the knowledge requirement misconstrues the state’s arguments. Read in their entirety and in the context of Green’s closing argument, the state’s closing and rebuttal arguments essentially state that if the jury finds incredible the evidence that Dau initiated the March 2000 telephone contact or that Dau told Green that the OFP had been dismissed, the jury must find Green guilty.
Even if the district court erred by denying Green’s requested instructions, a new trial will be granted based on an error in instructing the jury only if “it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict.” State v. Pendleton, 567 N.W.2d 265, 270 (Minn. 1997). Given the way the case was presented to the jury and the considerable evidence undercutting the credibility of Dau and Green’s trial testimony, it is clear beyond a reasonable doubt that any error in instructing the jury did not significantly affect the verdict. The jury was instructed that Green needed to know of the OFP and that “To know” requires that Green “believes that the specified fact exists.” These instructions told the jurors that they must determine whether Green believed that an OFP existed.
The state argues that Green waived any objection to the district court’s response to the jury’s question. Minn. R. Crim. P. 26.03, subd. 14, provides:
Exceptions to rulings or orders of the court or to the actions of a party are abolished. It is sufficient that a party, at the time the ruling or order of court is made or sought or the action of a party taken, makes known to the court the action which the party desires the court to take or the party’s objections to the action of the court or of a party and the grounds therefor; and, if a party has no opportunity to object to a ruling or order or action at the time it is made or taken the absence of an objection does not thereafter prejudice the party.
Green’s request that the trial court specifically instruct the jury that the reasonable person standard did not apply to this case was sufficient to satisfy Minn. R. Crim. P. 26.03, subd. 14.
Regarding the merits, Minn. R. Crim. P. 26.03, subd. 19(3)(1), provides:
If the jury, after retiring for deliberation, desires to be informed on any point of law, the jurors, after notice to the prosecutor and defense counsel, shall be conducted to the courtroom. The court shall give appropriate additional instructions in response to the jury’s request unless: (a) the jury may be adequately informed by directing their attention to some portion of the original instructions; (b) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or (c) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.
The court has discretion to determine an appropriate response to the jury’s request. State v. Crims, 540 N.W.2d 860, 864 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996).
The court directed the jury “to refer * * * back to the definition and elements of the offense itself and to the definition of the word ‘know’” and to carefully reread the definition and elements of the offense and the definition of “know.” The definition of “know” makes it clear that it is the defendant’s actual knowledge, not the reasonable-person standard, that is an element of violating an order for protection. Therefore, the district court did not abuse its discretion in responding to the jury’s question.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.