This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Bradley Charles Wilking,
Nicollet County District Court
File No. K501764
Mike Hatch, Attorney General, 102 State Capitol, 75 Constitution Avenue, St. Paul, MN 55155-1102; and
Michael K. Riley, Sr., Nicollet County Attorney, Philip J. Elbert, Assistant Nicollet County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082-0360 (for appellant)
Jason C. Kohlmeyer, Manahan, Bluth & Kohlmeyer Law Office, Chartered, 110 South Broad Street, P.O. Box 287, Mankato, MN 56002-0287 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant State of Minnesota charged respondent Bradley Wilking with one count each of tampering with a witness in the first degree; tampering with a witness in the second degree; obstructing legal process or arrest; and harassing telephone calls. Respondent moved to dismiss the charges for lack of probable cause. After a contested omnibus hearing, the district court granted respondent’s motion to dismiss all counts for lack of probable cause. The state filed a timely appeal challenging the dismissal of the two tampering with a witness charges and the charge of harassing telephone calls. We affirm the dismissals.
The facts in this case are largely undisputed. In October 2001, the state charged respondent with failure to report an accident and careless driving after his vehicle ran off the road and struck a tree on Larry Bruegger’s property. Respondent pleaded not guilty, and a court trial for those charges was scheduled for December 19, 2001. The underlying charges ultimately led to witness tampering and harassing telephone calls charges.
On November 13, 2001, at approximately 11:00 p.m., Bruegger looked outside after his dogs began to bark, and he saw headlights shining on the road. When he went outside to investigate, he encountered respondent and another person walking on the road. Respondent and Bruegger talked about the tree on Bruegger’s property that respondent had struck with his vehicle the previous month. Respondent told Bruegger that he had come over “to pay you for your tree * * * they gave me permission to cut down these trees today.” Respondent then gave Bruegger business cards of two of the county prosecutors and wanted Bruegger to have them drop the failure-to-report-an accident and careless-driving charges against respondent.
Bruegger testified at the omnibus hearing that respondent stated:
unless he wanted to follow through on cutting down these trees he would—you know, [Bruegger] had to get these two people to drop these charges.
Bruegger was scheduled to testify at the court trial on the charges against respondent of failure to report an accident and careless driving.
Bruegger went back inside his home and called the sheriff’s department. Respondent, from his cell phone, called Bruegger and asked to speak with him outside. Bruegger returned outside to speak with respondent, who by this time had driven his car onto Bruegger’s property. Respondent told Bruegger that “he was going to sue [Bruegger] if [Bruegger] didn’t get the County to drop the charges.” At approximately 11:25 p.m., two deputies from the Nicollet County Sheriff’s Department responded to the call from Bruegger that he was being harassed by respondent. Respondent left shortly after the deputies arrived.
Also on that day, it is undisputed that Bruegger received nine phone calls from respondent over a six-hour period while Bruegger was out of the home. The first time respondent called, he left a message telling Bruegger that he wanted to meet with him. Respondent hung up on the other calls when no one answered (although Bruegger’s wife was at home for most of the calls), and Bruegger identified respondent’s calls with caller identification.
On these facts, respondent moved to dismiss the charges for lack of probable cause. The district court granted the motion.
The state appeals the district court’s determination that no probable cause exists. The state may appeal a dismissal for lack of probable cause that is based on a legal determination, such as the interpretation of a statute. State v. Ciurleo, 471 N.W.2d 119, 121 (Minn. App. 1991). This court reviews de novo a district court’s dismissal for lack of probable cause if based on a legal determination. State v. Marshall, 541 N.W.2d 330, 332 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). When the state appeals a pretrial order under Minn. R. Crim. P. 28.04, this court should reverse only if the state clearly and unequivocally shows that the district court erred in its judgment, and that, unless reversed, the error will have a critical impact on the outcome of the trial. State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001). Because the charges in this case were dismissed, the critical impact requirement is satisfied. See id. (stating that critical impact requirement is satisfied if there is dismissal of a complaint).
Because the facts are largely undisputed in this case, this court must determine whether the district court properly applied the applicable statutes to the facts. State v. Ortiz, 626 N.W.2d 445, 449 (Minn. App. 2001), review denied (Minn. June 27, 2001). If the district court erroneously interpreted a statutory provision, it constitutes an error of law. State v. Linville, 598 N.W.2d 1, 2 (Minn. App. 1999). The interpretation of a statute is a legal issue, which this court reviews de novo. Id.
An individual is guilty of tampering with a witness in the first degree if he or she
[i]ntentionally prevents or dissuades or intentionally attempts to prevent or dissuade by means of force or threats of injury to any person or property, a person who is or may become a witness from attending or testifying at any trial, proceeding, or inquiry authorized by law.
Minn. Stat. § 609.498, subd. 1(a) (Supp. 2001) (emphasis added).
The state argues that sufficient probable cause exists because respondent’s conduct falls within the statutory language regarding “threat of injury” in two ways. First, when respondent threatened to sue Bruegger, respondent threatened an economic injury and the statute should be interpreted broadly to include “economic” injury and not be limited to “physical” injury. Second, the state argues that respondent threatened to injure Bruegger’s tree, namely to cut it down.
Respondent, on the other hand, argues that the legislature could not have intended so broad an interpretation of injury because that would produce an absurd result. Respondent argues that the term should be limited to “physical” injury.
The fundamental rule of statutory construction is to look first to the specific statutory language and be guided by its natural and most obvious meaning. State v. Edwards, 589 N.W.2d 807, 810 (Minn. App. 1999), review denied (Minn. May 18, 1999). However, when a statute is reasonably susceptible to more than one meaning, it is ambiguous. Westchester Fire Ins. Co. v. Hasbargen, 632 N.W.2d 754, 756 (Minn. App. 2001). When interpreting an ambiguous statute, this court must “ascertain and effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2000). In so doing, this court must presume that the legislature does not intend an absurd result and “intends the entire statute to be effective and certain.” Minn. Stat. § 645.17(1), (2) (2000).
Based on the canons of construction, the legislature evidently intended the threats to be limited to some form of physical injury. The first canon of interpretation instructs that words and phrases should be construed according to their common usage. Minn. Stat. § Minn. Stat. § 645.08(1) (2000). The dictionary most commonly defines injury as “damage or harm.” The American Heritage College Dictionary 700 (3d ed. 1997). And the verb to “injure” is most commonly defined as “to cause physical harm to.” Id. Thus the common usage of the word tends to suggest physical injury. Additionally, the use of the phrase “by means of force” in the statute further suggests that the legislature intended the crime to involve a physical or other tangible instrumentality. Force is most commonly defined as the capacity to cause “physical change” and as the “use of physical power or violence to compel or restrain.” Id. at 531.
We find no Minnesota statute that uses the term “economic injury” as being included in the concept of “injury.” The legislature has instead used the term “economic loss” when referring to a person’s financial loss or “injury.” See, e.g., Minn. Stat. § 65B.44, subd. 1 (2000) (defining basic-economic-loss benefits under no-fault statute to provide reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle). See also Minn. Stat. § 611A.038(a)(2) (2000) (legislature uses the phrase “economic loss” when referring to crime victim’s rights).
We also find no Minnesota caselaw suggesting that the statute should be interpreted so broadly so as to encompass economic injury. And any “ambiguity concerning the ambit of criminal statute should be resolved in favor of lenity [toward the defendant].” State v. Collins, 580 N.W.2d 36, 41 (Minn. App. 1998), review denied (Minn. July 16, 1998) (citations omitted).
There is no evidence that respondent threatened to harm Bruegger personally. But appellant argues that respondent did threaten to harm Bruegger’s tree. The district court found that respondent stated that he would “seek permission to cut down some trees on [Bruegger’s] property, which [respondent] had run into on a prior occasion * * * .” The court did not construe that statement as a threat to harm property, nor do we. To seek permission to do an act that might alter another’s property implies that some lawful procedure will be followed before any alteration occurs. Impliedly, if the permission is not obtained, the act will not occur. Respondent’s statement cannot be reasonably said to be a “threat” under the statute.
Because respondent’s conduct does not fall within the meaning of the statute, we agree with the district court that no probable cause exists on the charge of tampering with a witness in the first degree. Probable cause exists if, on the objective facts, a person of ordinary care and prudence would believe that a crime has been committed. State v. Skoog, 351 N.W.2d 380, 381 (Minn. App. 1984). In reviewing a probable cause challenge, we determine whether it is fair and reasonable under the facts to require the defendant to stand trial. Ortiz, 626 N.W.2d at 449. In this case, the district court did not err in dismissing the charge of witness tampering in the first degree.
Minnesota statutes provide that an individual is guilty of tampering with a witness in the second degree if he or she
[i]ntentionally prevents or dissuades or intentionally attempts to prevent or dissuade by means of any act described in section 609.27, subdivision 1, clause (3), (4), or (5), a person who is or may become a witness from attending or testifying at any trial proceeding, or inquiry authorized by law * * * .
Minn. Stat. § 609.498, subd. 2(a) (2000). Clauses 3, 4, and 5 in Minn. Stat. § 609.27, subd. 1, prohibit threats to a business, exposing any person to “disgrace or ridicule, or to make or cause to be made a criminal charge.
The state argues that respondent’s threat to sue Bruegger exposed him to potential disgrace or ridicule because he would be named as a defendant in a lawsuit. The two cases cited by the state are not applicable here. Manteuffel v. Theo. Hamm Brewing Co., 238 Minn. 140, 152, 56 N.W.2d 310, 317 (1952) (stating that ridicule should not be injected into counsel’s closing arguments so as to arouse prejudice); Wise v. Midtown Motors, Inc., 231 Minn. 46, 42 N.W. 2d 404 (1950) (holding, in a case involving an employer repudiating a contract of employment, that a threat to bring an action to inflict hardship constitutes duress). And we find no caselaw to support the state’s argument that a mere statement of “I’ll sue you” exposes a person to disgrace or ridicule within the meaning of the second-degree witness-tampering statute. Such a scenario would create an absurd result not intended by the legislature. Because there is no probable cause, the district court did not err in dismissing the charge of witness tampering in the second degree.
Minnesota statutes provide that an individual is guilty of harassing telephone calls if he or she “repeatedly makes telephone calls, whether or not conversation ensues, with intent to abuse, disturb, or cause distress.” Minn. Stat. § 609.79, subd. (1)(b) (2000).
The district court concluded that respondent’s repeated telephone calls were made with the intent to discuss the charges of failure to report an accident and careless driving and not with intent to abuse, disturb, or cause distress to Bruegger.
It is undisputed that respondent telephoned Bruegger’s home nine times on November 13, 2001, between the hours of 3:30 p.m. and 10:30 p.m. The record indicates that the first time respondent telephoned, no one was home, and he left a message on the answering machine stating that he wanted to talk to Bruegger as soon as possible. Bruegger’s wife returned home about 4:30 p.m. and noted the message and the caller i.d. indicating that respondent had called again. For the remainder of the evening, she did not pick up the telephone when respondent called, nor did respondent leave any other messages.
Whether probable cause exists on these facts is dependent on whether a person of ordinary care and prudence would entertain an honest and strong suspicion that respondent committed the crime of harassing telephone calls. Skoog, 351 N.W.2d at 381. And on reviewing a probable cause challenge, this court must determine whether it is fair and reasonable under the facts to require respondent to stand trial. Ortiz, 626 N.W.2d at 449.
The district court noted that whether probable cause existed for the harassing telephone calls is a “close question.” Although it is undisputed that respondent made repeated phone calls, he made them only on one day, left only one message requesting to speak with Bruegger, and hung up on the remainder of the calls when no one answered. In reviewing the facts as a whole, we cannot reasonably conclude that there is sufficient probable cause to require respondent to stand trial. Because there is no probable cause, the district court did not err in dismissing the charge of harassing telephone calls.