This opinion will be unpublished and

may not be cited except as provided by

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






Andrei A. Sobolev,





Sean Warner,



Filed April 16, 2002

Affirmed; motion granted
Klaphake, Judge


Ramsey County District Court

File No. C001100531


Andrei A. Sobolev, 535 Asbury Street, Apt. 2, St. Paul, MN  55104 (pro se appellant)


Rory Patrick Durkin, 403 Jackson Street, Suite 305, Anoka, MN  55303 (for respondent)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Andrei Sobolev appeals from a district court order vacating an ex parte temporary restraining order against respondent Sean Warner.  Appellant contends that the district court erred in finding that no reasonable grounds existed to show that respondent had harassed him for purposes of application of Minn. Stat. § 609.748 (2000), and that the court erred in failing to fully consider evidence contained in police and medical reports.  He also contends that the court’s findings erroneously emphasized appellant’s blood alcohol content.  Because we conclude that the court’s findings are supported by the record, are not clearly erroneous, and are relevant to the issues decided in this case, we affirm.


            On the night of June 6, 2001 and into the early morning hours of the following day, appellant was an invited guest at respondent’s home.  During the course of the evening the parties consumed alcohol and became involved in an argument.  Appellant was injured while respondent and another guest, Fedor Vstovsky, were attempting to prevent him from driving.  Appellant exhibited irrational conduct which included (1) becoming incensed about respondent’s seeking to obtain permanent employment for him; (2) lying in a fetal position and crying on the floor of a neighbor’s home that he broke into after the altercation; (3) telling police and hospital staff that respondent was working for the FBI or CIA and that the KGB was after him; (4) hiding in the hospital to evade nonexistent intruders; and (5) acting in an overall paranoid and accusatory manner.

            Appellant argues that the evidence contradicts the district court’s conclusion that he was not assaulted and that respondent’s conduct thus did not amount to harassment.  Under Minn. Stat. § 609.748, subd. 5(a) (2000), a court “may grant a restraining order ordering [a person] to cease or avoid the harassment of another person or to have no contact with that person” if  “the court finds [after a] hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.”  Id., subd. 5(a)(3).  The statutory definition of “harassment” includes “a single incident of physical * * * assault.”  Minn. Stat. § 609.748,subd. 1(a)(1) (2000).

            Appellant did offer evidence that could have supported a finding that respondent assaulted him.  His own testimony suggested a different factual scenario from the factual findings of the court.  The factual references in the medical records and police report supported appellant’s claim as to the facts, but their probative value was limited as they were based only on information provided by appellant.  A photograph of appellant taken after the incident does not establish the source of his injuries.  Appellant argues that this documentary evidence “conclusively established that [respondent] committed an act of harassment.”

            The court, however, gave more weight to the testimony of the two eyewitnesses, respondent and Vstovsky, who gave similar accounts of the incident.  According to their testimony, they intended to restrain appellant from driving while intoxicated, and neither of them intended to assault appellant, who was unreasonable, irrational, and very drunk at the time of the incident.  The district court found this testimony to be credible.  See J.W. ex rel. D.W. v. C.M., 627 N.W.2d 687, 693 (Minn. App. 2001) (appellate court defers to district court’s credibility determinations), review denied (Minn. Aug. 15, 2001).  Thus, while the record could have provided a basis for ruling in appellant’s favor, we must affirm the district court’s decision because its factual findings were supported by the record and do not leave us with the conviction that the district court made a mistake.  See Minn. R. Civ. P. 52.01 (findings of district court not to be set aside unless clearly erroneous); Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (findings of fact clearly erroneous “only if the reviewing court is left with the definite and firm conviction that a mistake has been made”) (quotation omitted). 

            Appellant further argues that the district court erred in making a finding on his blood alcohol content because that fact was irrelevant to whether or not respondent had harassed him.  According to the testimony of respondent and Vstovsky, appellant’s inebriation played a part in his demeanor and actions, which in turn led to their attempt to restrain him.  Thus, this fact was relevant to whether respondent intended to assault or harass appellant.

            Finally, respondent moves to strike a document contained on page 27 of the appendix to appellant’s brief.  The document purports to be a medical transportation record.  Because this document was not a part of the district court record, we grant respondent’s motion to strike.  See Minn. R. Civ. App. P. 110.01 (record on appeal includes papers filed in district court, exhibits, and transcript of any proceedings).

            Affirmed; motion granted.