This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Renville County District Court
File No. K901583
John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
David J. Torgelson, Renville County Attorney, P.O. Box D, Olivia, MN 56277 (for respondent)
Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.
Appellant challenges his felony conviction, arguing that the evidence was insufficient to prove beyond a reasonable doubt that he engaged in a pattern of harassing conduct, in violation of Minn. Stat. § 609.749, subd. 5 (2000). We affirm.
Appellant Roberto Alvarez and Beatrice Rivera had an ongoing relationship for approximately twelve years. During the relationship, Alvarez repeatedly threatened to harm Rivera and kill Rivera’s daughter in front of her. After Rivera ended the relationship because of domestic abuse, Alvarez moved to California for approximately three years. When Alvarez returned to Minnesota, he contacted Rivera on several occasions against her wishes.
On July 9, 2001, at approximately 8:30 p.m., Rivera was parking her car near her house when Alvarez arrived. He yelled at Rivera, directing her to get into his car. When Rivera refused, Alvarez told her to “watch out for the consequences” and that he was “going to do something” to her and her daughter. Alvarez left after Rivera’s daughter threatened to call the police.
The next day, Alvarez went to Rivera’s workplace and repeatedly asked Rivera’s coworkers to send Rivera out to talk to him. Rivera refused to come out. When Rivera left work, she did not see Alvarez outside, but she noticed that her car had been scratched. On her way home, Rivera observed Alvarez driving near her home. When Rivera arrived at home, Alvarez parked in front of her, got out of his car, and shouted at her. Alvarez asked Rivera why she did not come out of work to see him, admitted scratching Rivera’s car with a key, and threatened to further damage the car. Alvarez demanded that Rivera go to Hutchinson with him to pick up the title for his truck. He also threatened to cause Rivera to be fired.
While Rivera was visiting her daughter on the afternoon of July 11, 2001, Rivera saw Alvarez approaching the door. Alvarez demanded to talk to Rivera about the title for his truck. He said that “things would get worse” if Rivera would not come out. He also warned Rivera to be careful and “be aware of the consequences.” When Rivera refused to come out, Alvarez got into his truck, put it in reverse, and crashed into Rivera’s car. As Alvarez was leaving, Rivera’s daughter obtained the license-plate number of his truck and called the police.
Sergeant Kurt Kozel of the Hector Police Department responded to the call and inspected the damage to Rivera’s car. Rivera explained to Sergeant Kozel that
it was an ongoing harassment situation in which [Alvarez] was making phone calls, making drivebys to [the] residence, and making terroristic threats in regards to her life and her daughter’s life.
While he spoke with Rivera, Sergeant Kozel observed Rivera to be “shaky,” crying, “very frightened and in fear of her life.”
Approximately three weeks later, on August 2, 2001, Alvarez arrived at Rivera’s home. He yelled at Rivera that he wanted the title to his truck. He also threatened to burn her home. While Alvarez walked around Rivera’s home shouting that Rivera was going to go to hell and that “she knew what would happen,” Rivera hid in a corner inside her home. After about 15 minutes, Rivera called her daughter and asked her to call 911. After Alvarez left Rivera’s home, Rivera went to her daughter’s home, which was nearby, and hid.
When Sergeant Kozel arrived at the scene, Rivera’s daughter told him that Alvarez was harassing and threatening Rivera and that Rivera had gone to her daughter’s house to “hide out.” Rivera’s daughter told Sergeant Kozel that Alvarez used profanity, ordered Rivera out of the home, and threatened to go in after her if she would not come out. Rivera’s daughter also reported that Alvarez threatened to have his brother kill Rivera and her daughter if they called the police. Sergeant Kozel testified that Rivera was frightened and “very nervous and concerned about her welfare” until the police located Alvarez.
On August 3, 2001, Alvarez was charged with one count of engaging in a pattern of harassing conduct, in violation of Minn. Stat. § 609.749, subd. 5 (2000); three counts of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2000); and one count of criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 2(b) (2000). At the jury trial in September 2001, Rivera and her daughter testified about the incidents of harassment. Rivera testified that Alvarez’s words and actions caused her to be fearful. She understood Alvarez’s statements to mean that he was going to “kill me,” “kill my daughter right in front of me,” and “burn the trailer.” She also testified that she believed Alvarez was capable of harming her, because she had experienced his anger in the past.
The jury convicted Alvarez of one count of engaging in a pattern of harassing conduct, in violation of Minn. Stat. § 609.749, subd. 5; three counts of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1; and one count of criminal damage to property in the third degree, in violation of Minn. Stat. § 609.595, subd. 2(a). Alvarez was sentenced to 33 months’ imprisonment for his conviction of engaging in a pattern of harassing conduct. This appeal followed.
Alvarez argues that the evidence was insufficient to sustain his conviction for engaging in a pattern of harassing conduct, in violation of Minn. Stat. § 609.749, subd. 5 (2000). Our review of a claim of insufficient evidence 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 jurors to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We will not disturb the verdict if the jury, 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). Thus, we must determine whether the evidence could reasonably permit the jury to convict Alvarez of engaging in a pattern of harassing conduct. State v. Henderson, 620 N.W.2d 688, 704-05 (Minn. 2001).
Under Minn. Stat. § 609.749, subd. 5(a), it is a crime to
[e]ngage in a pattern of harassing conduct with respect to a single victim or one or more members of a single household which the actor knows or has reason to know would cause the victim under the circumstances to feel terrorized or to fear bodily harm and which does cause this reaction on the part of the victim.
A “pattern of harassing conduct” means two or more acts within a five-year period that violate the provisions that prohibit certain designated offenses listed in the statute. Id., subd. 5(b).
A conviction of [a] pattern of harassment requires proof beyond a reasonable doubt of all elements of the pattern harassment statute, including that defendant acted within the elements of the underlying offenses.
State v. Richardson, 633 N.W.2d 879, 887 (Minn. App. 2001) (citation omitted). Thus, in order to satisfy the elements of a pattern-of-harassing-conduct offense, the state must prove that Alvarez (1) committed two or more of the predicate offenses within a five-year period; (2) knew that his conduct would cause Rivera to feel terrorized; and (3) by his conduct, caused Rivera to feel terrorized or fear bodily harm. Cf. 10 Minnesota Practice, CRIMJIG 13.58 (Supp. 2002); Richardson, 633 N.W.2d at 887.
Alvarez was charged with three counts of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1, and one count of criminal damage to property in the third degree, in violation of Minn. Stat. § 609.595, subd. 2(a). These offenses are among the predicate offenses enumerated in Minn. Stat. § 609.749, subd. 5(b). The jury convicted Alvarez of the predicate offenses, and he does not challenge those convictions here. Thus, the first element is satisfied.
But Alvarez argues that his conviction for engaging in a pattern of harassing conduct should be reversed because the evidence neither established that he intended to cause Rivera to feel terrorized, nor that she felt terrorized. Alvarez contends that he did not intend to terrorize Rivera. Rather, he contacted Rivera with the intent to obtain the title to his truck. From the nature of Alvarez’s threats and the history of the relationship, we conclude that the jury could reasonably conclude that Alvarez knew his conduct would cause Rivera to feel terrorized.
Alvarez also argues that, because of inconsistencies in Rivera’s testimony, the state failed to prove beyond a reasonable doubt that Alvarez’s conduct caused Rivera to feel terrorized. We are unpersuaded. It is the province of the jury to determine the weight and credibility to be afforded the testimony of each witness. State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998); State v. Bowles, 530 N.W.2d 521, 533 (Minn. 1995); State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).
This is especially true where resolution of the case depends on conflicting testimony, because weighing the credibility of witnesses is the exclusive function of the jury.
State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). As the sole judge of credibility, a jury is free to accept part and reject part of a witness’s testimony. State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977). On review, this court assumes that the jury believed the testimony that supports the conviction and disbelieved the testimony that did not. Bliss, 457 N.W.2d at 390.
The evidence establishes that Alvarez contacted Rivera on four occasions against her wishes. He shouted at her, threatened her, and damaged her car. In two of the incidents, Rivera’s daughter called the police. Sergeant Kozel, who responded to the calls each time, testified that he observed Rivera to be frightened by Alvarez and concerned about her welfare as a result of Alvarez’s threats. Rivera also testified that she believed Alvarez would harm her because she had previously experienced his abuse.
Despite inconsistencies in Rivera’s testimony regarding the exact words that Alvarez used and the timing of certain events, there is no evidence in the record that rebuts Rivera’s testimony that Alvarez threatened Rivera, damaged her property, and caused her to feel terrorized. The uncontraverted evidence established that, during the last two incidents, Rivera’s fear caused her to hide in a different residence while she enlisted her daughter to call the police. Although the neighbors neither testified at trial nor disputed Rivera’s testimony, Alvarez argues that, because Rivera’s neighbors did not hear or witness the incidents, Rivera’s testimony lacks credibility. But the determination of witness credibility is the province of the jury, not that of an appellate court. Rivera, her daughter, and Sergeant Kozel were deemed credible by the jury.
In light of the evidence, the jury could conclude beyond a reasonable doubt that Alvarez is guilty of committing a pattern of harassing conduct against Rivera.