This opinion will be unpublished and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

A03-1656

 

State of Minnesota,

Respondent,

 

vs.

 

Charles Lionel Sieff,

Appellant.

 

Filed October 12, 2004

Affirmed

Randall, Judge

 

Nobles County District Court

File No. K9-03-148

 

 

Mike Hatch, Minnesota Attorney General, Kimberly Parker, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101 and

 

Gordon Moore, Nobles County Attorney, 1530 Airport Road, Suite 400, P.O. Box 337, Worthington, MN  56187  (for respondent)

 

John M. Stuart, State Public Defender, Jodie Carlson, Assistant State Public Defender, 2221 University Ave. SE, Suite 425, Minneapolis, MN  55414  (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Minge, Judge.


U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from conviction for felony violation of an order for protection, appellant argues that the district court abused its discretion in declining to instruct the jury that the statute required that he “knowingly” violated a condition of the order.  Appellant argues that the court’s instruction, in effect, made the offense a strict liability crime, and that because appellant thought the order allowed him to discuss visitation with his ex-wife in a public place, the lack of the requested instruction prejudiced his case.  We find no error and affirm.

FACTS

Jacqueline Sieff (Sieff) and appellant Charles Sieff (appellant) were married in 1966 and divorced in 1999.  In July 2002, Sieff obtained an Order for Protection (OFP).[1]  The OFP prohibited appellant from contacting Sieff except for purposes of visitation.    

            On the weekend of March 1, 2003, the Sieffs had two sons playing in a basketball tournament at Worthington High School.  Appellant had visitation with his two daughters that weekend and brought them to the tournament to watch their brothers play.  When appellant arrived at the high school, he saw Sieff in the parking lot.  Appellant wanted to discuss some visitation issues with her, so appellant approached Sieff while she was purchasing tickets for the basketball game.  After a brief confrontation with appellant, Sieff went to the office and contacted the police.  The police arrived shortly thereafter and appellant was arrested for violation of the OFP. 

Because appellant had two prior convictions for the same offense, appellant was charged with felony violation of an OFP pursuant to Minn. Stat. § 518B.01, subd. 14(d) (2002).  An omnibus hearing was held on April 3, 2003.  The district court concluded that there was probable cause for the arrest.  Appellant subsequently pleaded not guilty and a jury trial was held on June 19, 2003.[2]  Both parties stipulated before trial that neither would elicit testimony from witnesses about the witness’s interpretation of the language in the order allowing contact “for visitation purposes only.”[3]  It was left to the jury to decide the meaning of the phrase and whether appellant’s actions violated the terms of the order.   

At trial, Sieff testified that while she was purchasing her ticket for the basketball game, appellant approached her and stated that he needed to speak with her about visitation.  Sieff testified that she told appellant to leave her alone and that this was not the time and place to talk about visitation because she has an attorney to handle visitation.  Sieff further testified that appellant approached her two more times, once while she was
on the phone with police, and the other while she was standing at the school entrance waiting for the police to arrive.

            Christine Pruess, a school district employee, also testified at trial.  Pruess testified that as Sieff was writing a check for her ticket, appellant got out of line and confronted Sieff.  Pruess stated that appellant was “loud” and seemed “really frustrated.”  Pruess testified that Sieff appeared to be nervous and uncomfortable. 

            Appellant took the stand in his defense.  Appellant admitted confronting Sieff while she was paying for the ticket, but he denied talking to her while she was on the phone with police.  Appellant explained that he happened to be near Sieff while she was on the telephone because the telephone was located near the restroom, which was where he was going.  Appellant also denied talking to Sieff at the school entrance when she was waiting for police to arrive.  Appellant testified that he merely walked past Sieff as he exited the school to go to his car to get his copy of the OFP.  Appellant claimed that he believed that his actions did not violate the OFP because the conditions of the OFP permitted him to talk with Sieff about visitation issues. 

At the close of the trial, appellant requested that the standard jury instruction for an OFP violation include an instruction that appellant had to “knowingly” violate the order.  The district court denied appellant’s motion and the jury found appellant guilty.  The district court sentenced appellant to one year in jail, stayed the jail time except for 45
days, ordered appellant to pay a $1,000 fine and placed appellant on probation for three years.  This appeal followed.

D E C I S I O N

            Appellant argues that the district court erred by refusing to adopt his proposed jury instructions.  A district court has discretion to refuse to give a requested jury instruction, and its decision will not be reversed absent an abuse of discretion.  State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989).  The district court is allowed “considerable latitude” in choosing the language to be included in jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990).  A party is entitled to a requested instruction if there is evidence to support it, but the court is not required to give the instruction if the substance of it is already contained in the court’s charge.  State v. Daniels, 361 N.W.2d 819, 832 (Minn. 1985).  The jury instructions must be read as a whole, and if, when so read, they correctly state the law in language that can be understood by the jury, there is no reversible error.  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).

            Minn. Stat. § 518B.01, subd. 14(b) (2002) provides that:  “Whenever an order for protection is granted . . . and the respondent or person to be restrained knows of the existence of the order, violation of the order for protection is a misdemeanor.”  The penalty is increased and the person is guilty of a felony if the offender violates an order for protection three or more times in a five-year period.  Minn. Stat. § 518B.01, subd.
14(d) (2002).  Because appellant had two prior convictions for order for protection (OFP) violations, he was charged with a felony under Minn. Stat. § 518B.01, subd. 14(d).

            Before trial, appellant stipulated to the two previous convictions and no evidence was submitted to the jury regarding the two prior convictions.  At the conclusion of the trial, the district court instructed the jury as follows:

VIOLATION OF AN ORDER FOR PROTECTION – DEFINED:  The statutes of Minnesota provide that whoever violates an order for protection granted pursuant to the Domestic Abuse Act, or similar law of another State, and knows of the order, is guilty of a crime.

VIOLATION OF AN ORDER FOR PROTECTION – ELEMENTS:  The elements of violation of an order for protection are:

First, there was an existing order for protection.

Second, the defendant violated a term or condition of the order.

Third, the defendant knew of the order.

Fourth, the defendant’s act took place on about March 1, 2002, in Nobles County.

If you find that each of these elements has been proved beyond a reasonable doubt, the defendant is guilty.  If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.

 

            Appellant argues that the district court erred when it refused to instruct the jury that the state had to prove that appellant “knowingly” violated a term or condition of the OFP.  Appellant contends that by refusing to incorporate the term “knowingly” into the second element, the district court impermissibly made a violation of an OFP a strict liability offense.  Specifically, appellant asserts that an OFP violation cannot be a strict liability offense because the offense is not a public welfare offense, a violation may carry felony level penalties, and the legislature expressed no intent to create a strict liability offense.

            It would not have been error for the district court to utilize defendant’s requested language, but, having said that, we find no error in the instruction given.  Minn. Stat. § 518B.01, subd. 14, does not dispense with the “mens rea” element.  The statute requires that a defendant have knowledge of the OFP.  The state must prove the defendant knew of the OFP.  A defendant who knows of the OFP is deemed to know the contents of the OFP, including the prohibited conduct.  See State v. Colvin, 629 N.W.2d 135, 138 (Minn. App. 2001) (stating that “the state is required to prove the existence, and defendant’s awareness of the order for protection, in addition to the violation of the order.”) rev’d on other grounds, 645 N.W.2d 449 (Minn. 2002).  The statute does not make an OFP violation a strict liability offense; knowledge or scienter is an essential element.  But we cannot criticize an instruction that tracks the statute.  Appellant wanted “knowingly.”  The court used the term “knew of the order.”  The district court did not err.

Appellant also contends that a violation of an OFP is at a minimum a general intent crime, and, thus, the district court erred by not giving the requested instruction.  In support of his argument, appellant cites State v. Wiltse for the proposition that a violation of an OFP cannot be a strict liability offense because the defendant’s explanation is relevant in determining whether the order was violated.  386 N.W.2d 315 (Minn. App. 1986).  The Wiltse court did not reach the issue of intent as an essential element of Minn. Stat. § 518B.01, subd. 14.  Id. at 318.  Rather, the court reversed and remanded on the basis that the defendant was deprived of a fair trial because the defendant was not allowed to explain his conduct and his presence at the scene of the alleged crime.  Id.

Although not binding, there is a line of unpublished cases that are persuasive with respect to appellant’s argument.  In State v. Peltier, No. C3-99-2029, 2000 WL 1376448 (Minn. App. Sept. 26, 2000), the defendant argued that the district court abused its discretion by denying his request for a jury instruction that he “knowingly” violated a term of the OFP.  This court held that the defendant’s proposed jury instruction misstated the law and the district court did not err by refusing the instruction.  Id. at *4.  Similarly, in the unpublished decision of State v. Green, No. C4-00-1768, 2001 WL 682764 (Minn. App. June 19, 2001), this court concluded that there was no error with the exact same jury instructions that were given here.  Finally, in State v. Pederson, No. C0-97-1738, 1998 WL 389055 (Minn. App. July 14, 1998), this court rejected the argument that the district court erred in refusing to instruct the jury that the intent to produce a specific result is an essential element of the crime of violation of an OFP.  Despite the fact that these cases concerned misdemeanor or gross misdemeanor penalties, there is nothing in these cases to indicate that the same reasoning would not apply to a felony.

Here, the district court instructed the jury pursuant to CRIMJIG 13.53-.54 and provided the jury with the elements of the offense in accordance with the law.  In defining the violation, the district court recited the applicable statute practically verbatim.  The recitation here of the applicable statute did not result in an instruction misstating the law.  Having said that, we note that the state’s case is not strong, and appellant’s conduct was not egregious.  On these facts, we question how this rose to the felony level, but the statute is there.  Guilt, like beauty, “is in the eye of the beholder” and in this instance, the fact-finder found guilt. 

               Finally, appellant filed a pro se brief.  Appellant’s brief refers to material that is not in the record.  To the extent that appellant raises facts not in the record, those facts are not properly before this court and will not be considered.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).

               Affirmed.



[1]  Sieff was granted a prior OFP on June 1, 2000, which was mistakenly allowed to expire in 2002.

[2]  Before trial, appellant stipulated to his two prior OFP convictions.

[3] The parties agreed that appellant would be allowed to explain his reasoning for confronting Sieff.