This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jeffrey Charles Morris,
Dakota County District Court
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Kaarin S. Long, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Jeffrey Charles Morris argues that (1) the evidence was insufficient as a matter of law to sustain his convictions of harassment and stalking and of engaging in a pattern of harassing conduct; and (2) the district court abused its discretion by imposing a double upward durational departure for appellant’s conviction of pattern harassment. We affirm.
In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
The district court found appellant guilty of two counts of felony harassment and stalking for knowingly making false allegations against a peace officer concerning the performance of the officer’s official duties, in violation of Minn. Stat. § 609.749, subds. 2(a)(7), 3(2) (2000). The district court also found appellant guilty of two counts of felony pattern harassment, in violation of Minn. Stat. § 609.749, subds. 2(a)(4), 2(a)(6), 5(a) (2000).
In order to convict appellant of harassment, the state needed to prove that (1) appellant knew or had reason to know that his conduct would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) appellant’s conduct caused this reaction on the part of the victim. Minn. Stat. § 609.749, subd. 1 (2000). Appellant contends that his conduct did not cause the officer to feel frightened, threatened, oppressed, persecuted, or intimidated. We disagree.
The evidence is sufficient to show that the false allegations caused the officer to feel frightened, threatened, oppressed, persecuted, or intimidated. At trial, the state produced multiple witnesses who testified that a man called their business and identified himself using the name of an officer in the Dakota County sheriff’s department. All of the businesses called were located in Lakeville, Minnesota, where the victim police officer and his family lived. Each of the witnesses stated that the caller (1) claimed to be conducting an investigation of the officer; (2) gave out the officer’s home address and phone number; and (3) stated that the officer was luring children into his squad car and molesting them. Some witnesses further testified that the caller told them to spread the word to others about the officer’s actions.
This conduct would reasonably make anyone in the officer’s position feel threatened, oppressed, or persecuted. The officer’s job involves protecting citizens from criminals and appellant accused the officer of being a child molester. The officer testified that such calls (1) affected his reputation and credibility as a police officer; (2) increased his stress level, making it more difficult to perform his duties as a police officer; and (3) made him feel concerned about the safety of his family. We conclude that the evidence is sufficient to show that the phone calls placed to the Lakeville businesses caused the officer to feel threatened, oppressed, frightened, or persecuted.
Appellant next argues that the evidence was not sufficient to support his felony convictions of engaging in a pattern of harassment. The district court found appellant guilty of two counts of harassing conduct for repeatedly making telephone calls and for repeatedly mailing postcards to the officer, in violation of Minn. Stat. § 609.749, subds. 2(a)(4), 2(a)(6). Such conduct is classified as a gross misdemeanor, but Minn. Stat. § 609.479, subd. 5(a), makes it a felony to engage in a pattern of harassing conduct.
In order to convict appellant of this crime, the state needed to prove beyond a reasonable doubt all of the elements of the pattern harassment statute and that appellant’s acts satisfied the elements of the underlying offenses. State v. Schmitz, 559 N.W.2d 701, 705 (Minn. App. 1997). Therefore, the state needed to prove that (1) appellant knew or had reason to know that the phone calls and the postcards would cause the officer under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) appellant’s conduct caused this reaction on the part of the officer. Minn. Stat. § 609.749, subds. 1, 2(a)(4), 2(a)(6). After proving harassment, the state needed to prove that appellant’s conduct involved a pattern with respect to the officer that appellant knew or had reason to know would cause the officer under the circumstances “to feel terrorized or to fear bodily harm,” and which did cause this reaction on the part of the officer. Minn. Stat. § 609.749, subd. 5(a).
The district court based appellant’s conviction on the findings that appellant made harassing phone calls to the officer’s wife, the officer’s mother-in-law, and to the officer himself; that appellant sent three harassing postcards to the officer’s place of work and one harassing postcard to the officer’s home; and that appellant, representing himself as a police officer, placed phone calls to several businesses in Lakeville and informed each business that the officer was enticing children into his squad car and molesting them. The district court found these actions sufficient to constitute a pattern of harassing conduct.
Appellant argues that his conviction for pattern harassment cannot stand because (1) the state did not prove beyond a reasonable doubt that the postcards and telephone calls were harassing; (2) the state did not prove that the officer was terrorized by appellant’s conduct; and (3) the state did not prove that there was a pattern of harassment. We disagree.
Sufficient evidence was presented by the state to establish harassment. Based on the evidence, it was reasonable for the district court to conclude that appellant had reason to know that making several phone calls to a police officer’s home would threaten the officer. Moreover, the contents of the postcards that appellant mailed to the officer gave appellant reason to know that the officer would feel frightened, threatened, oppressed, persecuted, or intimidated by the postcards. One postcard accused the officer of “messing around with little boys.” Other postcards contained sexual remarks, including some that were marked return to sender in the officer’s name, which included requests for subscriptions to sexually oriented magazines.
Moreover, the evidence presented at the bench trial was sufficient to establish that the officer felt frightened, threatened, or intimidated by appellant’s phone calls and postcards. The officer testified that he (1) had his phone number changed; (2) considered moving his family to a new location; and (3) was concerned not only for his safety, but for the safety of his family since appellant knew where he lived. An act not overtly terrifying in itself might convey the “message that [the actor might be] capable of coming back and doing something more serious.” State v. Murphy, 545 N.W.2d 909, 915 (Minn. 1996). Based on the officer’s testimony, sufficient evidence was presented to establish that the multiple phone calls and postcards made the officer feel threatened or intimidated.
Sufficient evidence was also presented to prove that the officer felt terrorized or feared bodily harm as a result of appellant’s conduct, as required by Minn. Stat. § 609.749, subd. 5(a). As mentioned above, the officer testified that appellant’s conduct caused him to fear not only for his safety, but for the safety of his family and the officer had his phone number changed and considered moving. Moreover, the officer testified that because of appellant’s criminal background, which included a history of violent crimes, he was concerned about what appellant was capable of doing. Based on the officer’s testimony, sufficient evidence was presented to show that the officer felt terrorized or feared bodily harm as the result of appellant’s conduct.
Finally, the state presented sufficient evidence to establish a pattern of harassment for repeatedly making phone calls, in violation of Minn. Stat. § 609.749, subds. 2(a)(4), 5(a). We reject appellant’s argument that under State v. Richardson, 633 N.W.2d 879, 887 (Minn. App. 2001), the three phone calls to the officer’s home were insufficient to establish a pattern of repeatedly making phone calls. Under Richardson,a conviction of pattern harassment can stand “when at least two separate and discrete criminal acts against a single individual occur.” Id. Moreover, the court in Richardson statesthat nothing in the language of Minn. Stat. § 609.749 expressly limits
the prosecutor’s discretion in determining how to charge a defendant with pattern harassmentwhen the defendant commits at least three of the underlying criminal acts within a five-year period. Nor does it expressly prohibit the prosecutor from overlapping a predicate act to charge a defendant with multiple counts of pattern harassment.
Id. at 884. Thus, the state properly charged appellant with pattern harassment based on the three telephone calls appellant placed to the officer and his family.
The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
The criminal code allows for increased sentences for certain dangerous and repeat felony offenders. State v. Branson, 529 N.W.2d 1, 3 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). Minn. Stat. § 609.1095 (2000) outlines the requirements for a district court to impose an upward durational departure based on a finding that an offender is a dangerous and repeat offender. First, the offender must be convicted of a violent crime. Minn. Stat. § 609.1095, subd. 2. Next, the district court must determine that “the offender has two or more prior convictions for violent crimes.” Id., subd. 2(1). Finally, the district court must find that “the offender is a danger to public safety.” Id., subd. 2(2). This finding may be based on
the offender’s past criminal behavior, such as the offender’s high frequency rate of criminal activity * * * or long involvement in criminal activity * * * .”
Id., subd. 2(2)(i).
Here, the district court found that the circumstances of these crimes, as well as appellant’s prior convictions, satisfied the requirements for a departure under the dangerous-offender statute. Therefore, the district court sentenced appellant to 102 months in prison for count three of pattern harassment, a double upward departure from the presumptive sentence of 51 months.
Appellant argues that the district court abused its discretion in finding that appellant was a “danger to public safety.” Appellant contends that appellant’s convictions of violent felonies were almost 20 years old and that his recent criminal activity has involved less serious misdemeanor and gross misdemeanor conduct. We disagree.
Based on appellant’s past criminal history and the conduct involved here, the district court did not abuse its discretion in imposing a double upward departure. In 1994, appellant was convicted for impersonating a police officer and falsely reporting to several businesses in Anoka County that a certain judge in that county was a child molester. Moreover, appellant has been convicted in the past for more violent crimes. In 1978, appellant was convicted for bank robbery. In 1983, appellant was convicted for first-degree assault and aggravated robbery. In 1993, appellant was convicted for criminal damage and theft. And, contrary to appellant’s claims, some of appellant’s violent crimes occurred recently. In 1998, appellant was convicted for possession of tear gas. In 2000, appellant was convicted for criminal damage to property.
Because appellant’s current convictions are for violent crimes under Minn. Stat. § 609.1095, subd. 2, and because of appellant’s frequent and long involvement in criminal activity, sufficient evidence exists to show that appellant poses a danger to public safety. The district court did not abuse its discretion in imposing a double upward durational departure on appellant’s sentence.
Finally, appellant also submitted multiple pro se briefs raising several issues. After careful review, we conclude appellant’s pro se claims are without merit.
 Minn. Stat. § 609.749, subd. 2(a)(7), states that one who knowingly makes false allegations against an officer “concerning the officer’s performance of official duties with intent to influence or tamper with the officer’s performance of official duties” has committed gross misdemeanor harassment. Minn. Stat. § 609.749, subd. 3(2), makes it a felony to commit any of the crimes listed in subdivision 2 while falsely impersonating another.