This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Marie J. Knute, petitioner,





Craig Vanoverbeke,



Filed December 17, 2002

Klaphake, Judge


Scott County District Court

File No. F0205374


Marie J. Knute, 1705 West 157th Street, Shakopee, MN  55379 (pro se respondent)


William A. Lemons, S. John Roach & Associates, 155 East First Avenue, P.O. Box 389, Shakopee, MN  55379 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Craig Vanoverbeke appeals from the district court’s issuance of a harassment restraining order against him, alleging that (1) there was insufficient evidence to grant the restraining order; (2) the restrictions of the restraining order are overly broad; and (3) the court abused its discretion in admitting transcripts, rather than the actual tapes, of voice-mail messages.  Because there are sufficient grounds to sustain the district court’s findings, the restrictions are reasonable in light of the circumstances, and admission of the transcripts was not an abuse of discretion, we affirm. 


            1.         Sufficiency of the Evidence

            The district court may issue an order restraining a person from harassing or contacting another if (1) the victim files a petition for a harassment restraining order; (2) the party to be restrained is served with a copy of the temporary restraining order and a notice of the time and place of hearing on the order; and (3) the court finds after a hearing that there are reasonable grounds to believe that the person has engaged in harassment.  Minn. Stat. § 609.748, subd. 5 (2002).  “Harassment” is defined to include

a single incident of physical or sexual assault or 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, security, or privacy of another, regardless of the relationship between the actor and the intended target[.]


Minn. Stat. § 609.748, subd. 1(a)(1) (2002).  The offending words or conduct need not be obscene or vulgar.  Welsh v. Johnson, 508 N.W.2d 212, 216 (Minn. App. 1993). 

            Findings will not be set aside unless clearly erroneous.  Davidson v. Webb, 535 N.W.2d 822, 824 (Minn. App. 1995).   While it is preferable that the district court make findings, “where the record is reasonably clear and the facts not seriously disputed, the judgment of the [district] court can be upheld in the absence of * * * findings made pursuant to Rule 52.01.”  Reed v. Christman, 376 N.W.2d 742, 744 (Minn. App. 1985) (quotation omitted).  The reviewing court acknowledges the opportunity of the district court to judge the credibility of witnesses.  Davidson, 535 N.W.2d at 824.

            Here, respondent testified that she told appellant that she did not want a relationship with him, that she had a boyfriend, and that his calls, e-mails, and other contacts were unwanted.  She testified as well that she felt her privacy was threatened and found appellant’s persistent attentions frightening.  Although appellant testified that he was not aware that respondent did not like these contacts, the district court apparently found respondent more credible than appellant.  Further, the record shows a number of voice-mail messages, including four in one day, e-mails, and a note with vaguely threatening content.  These record facts provide a reasonable basis for the court’s finding of harassment.  We therefore conclude that the court’s finding was not clearly erroneous and that the issuance of the harassment restraining order was justified.

            Appellant argues that the terms of the restraining order are overbroad and significantly restrict his ability to continue working because respondent is also employed at the same site.  Appellant, who was moved to the night shift by his supervisor to avoid contact with respondent, maintained at oral argument before this court that this change in schedule was inconvenient and that respondent could have been adequately protected by a restraining order requiring him to stay more than 10 feet away from her.

            While the statute is not specific, prior cases suggest that, in determining whether a restraining order is overly broad, the court must weigh the interests of the victim against the burden on the restrained party.  See, e.g., Davidson, 535 N.W.2d at 824 (finding that problems would arise if parties had contact and that restrained party could conduct his business from his office, rather than at site where victim’s business was located);[1] Welsh, 508 N.W.2d at 215 (balancing “well-being, tranquility, and privacy of the [victim’s] home” against restrained party’s rights to express his views).

            From the record here, the duties of both appellant and respondent require that they be in the same large shop room.  Respondent has the right to be protected from appellant’s intrusions into her privacy.  Although appellant finds it inconvenient to work a different shift, his essential interest in maintaining his employment has been protected.  The findings of the district court are not clearly erroneous, and the decision is not an abuse of discretion.

            2.         Evidentiary Ruling

            Appellant challenges the district court’s ruling permitting submission of transcripts of voice-mail messages in lieu of the original tape recordings.  Appellant cites Minn. R. Evid. 1002, which states that “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Legislative Act.”  Originals are not required if the original is (1) lost or destroyed; (2) not obtainable; (3) in the possession of a party opponent; or (4) about a purely collateral matter and not closely related to a controlling issue.  Minn. R. Evid. 1004. 

            Generally, the district court has considerable discretion in its evidentiary rulings.  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-56 (Minn. 1997).  A reviewing court can reverse where the evidentiary ruling is arbitrary, capricious, or contrary to law.  Id. at 46.  The complaining party must demonstrate that the ruling was prejudicial error.  Id. 

            Minn. R. Evid. 1007 permits the contents of recordings to be proved by the testimony of the party against whom it is offered, without accounting for the non-production of the original.  Here, when questioned about the messages, appellant admitted making the calls and did not dispute the content of the transcripts, except to claim that the tenth message appeared to be missing some of its content.  Appellant was permitted to describe the missing content to provide a context for that message.  While admission of the tapes themselves may have been preferable, the district court’s decision to accept the transcripts was not an abuse of discretion.



[1] Since Davidson was decided, Minn. Stat. § 609.748 was amended and requires more than a single threatening incident.