This opinion will be unpublished and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

A03-1448

 

 

Jesse Ventura,

petitioner,

Respondent,

 

vs.

 

Leslie Davis,

Appellant.

 

 

Filed June 22, 2004

Affirmed
Crippen, Judge
*

 

Ramsey County District Court

File No. C2-03-100602

 

 

David B. Olsen, Timothy Mulrooney, Henson & Efron, 220 South Sixth Street, Suite 1800, Minneapolis, MN 55402 (for respondent)

 

Leslie Davis, P.O. Box 11688, Minneapolis MN 55411-1441 (pro se appellant)

 

 

            Considered and decided by Willis, Presiding Judge, Peterson, Judge, and Crippen, Judge.

 

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant contends that the district court’s findings in its harassment restraining order were unsupported and inadequately detailed.  Given the evidence adequately supporting the two specific findings, we affirm.

FACTS

            Respondent Jesse Ventura, former Governor of Minnesota, became acquainted with appellant Leslie Davis, a Twin Cities environmental activist, during his term in office from 1998 to 2002.  After first supporting the governor, appellant actively and publicly denounced him.  Shortly after conclusion of his term, respondent was engaged to host a cable television show, and he taped segments of the show from the studios of Twin Cities Public Television in St. Paul.  During tapings, appellant and William Dahn, who is not a party to this case, set up and manned a protest outside the main door to the studios.  They employed signs, placards, obscene gestures, and verbal taunts.  Respondent testified that this conduct occurred and that he was “afraid of what [appellant] could do” to him or his property. 

            Ultimately, in August 2003, respondent petitioned for a harassment restraining order under Minn. Stat. § 609.748 (2002), seeking to bar appellant from the public television studios and to avoid contact with respondent.  Based upon testimony at a hearing late in August, the district court found that appellant had engaged in harassment in that he “threatened to damage [respondent’s] car” and engaged in conduct “which would incite an immediate breach of the peace.”  The court then granted a harassment restraining order against appellant, to remain in effect for one year, which prohibited any harassment of or contact with respondent, directed appellant to stay away from respondent’s residence, and forbade appellant to protest at the public television studios when respondent was present. 

D E C I S I O N

            This court reviews harassment restraining orders under an abuse-of-discretion standard.  Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn. App. 2002).  The order can be issued only upon findings that “harassment” has occurred, conduct defined by statute as “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, subds. 1(a)(1), 5(a)(3) (2002).[1]

1.

            Appellant argues that the district’s court findings are unsupported by the record.  But he acknowledges that the court’s decision “is very much a matter of credibility of witnesses and their word” and that the district court stated on the record it had “accepted [respondent’s] word.”  This court is not to set aside findings of fact unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; Davidson v. Webb, 535 N.W.2d 822, 824 (Minn. App. 1995) (superceded by statute).  We must give appropriate regard to the trial court’s assessment of the credibility of witnesses.  Stiff v. Assoc. Sewing Supply Co., 436 N.W.2d 777, 779 (Minn. 1989). 

            The record includes sufficient evidence, given the district court’s assessment of the credibility of witnesses, to permit its findings on harassment, both the finding on a threat of property damage and the occurrence of conduct that incited an immediate breach of the peace.  The court heard evidence that appellant had tried to provoke respondent by regularly engaging himself in calling respondent names, making obscene hand gestures to him, and taunting him to “get it on” with or “fight” with appellant.  Respondent testified that appellant specifically threatened to damage respondent’s automobile.  This evidence produced the court’s harassment findings and its general observation during the hearing that it found respondent had been threatened “for no legitimate reason.”  The record does not compel us or permit us to substitute for the court’s findings the assertion of appellant that he was engaged solely in a peaceful protest to broadcast a variety of truthful messages.

            Appellant’s only specific challenge to the findings, his recitation of evidence that might conflict with a determination that harm to respondent’s vehicle was threatened, ends with appellant’s acknowledgement of what transpired at the hearing:  The record shows appellant’s statement to the district court that a finding on the threat could occur if the court would “accept [respondent’s] word”; there follows the court’s response, “And I have accepted his word.”  We must defer to this credibility determination.

            Appellant cites an unpublished decision of this court that reversed a harassment order that was issued without findings to explain the adverse effect of conduct said to prompt the order.[2]  See Lang v. Dunlap, No. C1-03-60 (Minn. App. Sept. 16, 2003).  But the court in this case specifically cited misconduct that would adversely affect respondent, both in the incitement of conflict and in damage to respondent’s vehicle.  Appellant complains that the district court acted on its finding of a threat to a vehicle of respondent but did not include in its restraining order a prohibition of this conduct.  However, the restraining order specifically prohibits conduct damaging respondent’s property.

2.

            Before explaining his challenge of district court findings, just reviewed, appellant makes a general statement that the record fails to show any “credible evidence” to show that his behavior “adversely affected the safety, security or privacy of [respondent].”  We have reviewed this statement with attention to the question, perhaps implied, whether the court’s particular findings are adequate to explain its ultimate determination that harassment occurred.  See Minn. Stat. § 609.748, subd. 1(a)(1) (describing harassment as intrusive conduct adversely effecting the petitioner’s “safety, security, or privacy.”)

            In his brief, appellant discusses the legal definition of harassment only insofar as he details an assertion that the evidence in the case does not show an invasion of respondent’s privacy, given respondent’s status as a public figure.  This argument serves largely to beg the question as to whether the evidence and the findings show conduct with substantial adverse effect on respondent’s safety and security.  We conclude, confined to circumstances where appellant has not discussed the topic, that respondent’s safety and security were substantially and adversely affected by conduct that included incitement of an immediate breach of peace and statement of a threat to damage respondent’s car.

3.

            Appellant contends that the district court erred when it made findings on evidence in the record but prohibited appellant’s efforts to introduce further evidence, including testimony of another protester, and a book and other exhibits that bore upon the relationship of the parties in the three years before 2003.  Appellant asserts that the court wrongfully attempted to confine the record to current events after respondent made an initial claim of harassment over a period of years.  But appellant has not established that the excluded evidence was actually relevant to whether specific incidents of harassing conduct occurred as respondent claimed. 

            Appellant also argues that the district court demonstrated bias in excluding evidence, but the record indicates that (1) the court acted to preserve orderliness; (2) appellant initiated no challenge on district court bias; and (3) appellant now alludes to bias solely as it relates to his challenge of findings of fact.

4.

            Finally, appellant states that his conduct was protected by his free-speech rights under the national and state constitutions, but he offers no discussion of these rights as they bear on this case, and his assertion of a constitutional issue is premised as part of his factual claim that he engaged in peaceful protest and not in threatening behavior.  In his reply brief, appellant argues that the district court’s restraining order unreasonably requires him to decline prospective invitations to public television studios when respondent is present; if this is to be deemed an enlargement of appellant’s assertion of free-speech issues, we conclude that this restriction of appellant’s rights is reasonable in time and place.  See Welsh v. Johnson, 508 N.W.2d 212, 215 (Minn. App. 1993) (reciting established standard on reasonableness).  It is especially evident in the circumstances of this case that the restraining order is content neutral and leaves open abundant alternative channels for appellant’s communication of information.  Id. (testing reasonableness on these considerations, together with the narrow tailoring of the restrictions). 

            Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant’s brief is premised on a misstatement of the statute that includes improper acts that have “intended” effects but excludes acts that actually “have a substantial adverse effect.” 

[2] Pursuant to Minn. Stat. § 480A.08, subd. 3 (2002), unpublished opinions of the court of appeals are not precedential.