This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Peter Ralph Barberg,
Wright County District Court
File No. TX-04-4181
Attorney General, 1800
Thomas N. Kelly,
Glenn Bruder, Mitchell, Bruder, & Johnson, 4005 West 65th Street, Suite 200, Edina, MN 55435; and
Tristam O Hage, 919
Old Highway 8 N.W.,
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction for violation of a harassment restraining order, appellant argues that (1) the direction in the preprinted form order, that appellant “stay away” from the house the victim rented from him, was vague and ambiguous and, as construed by the prosecution, violated his right to maintain his farm property that surrounded the house, (2) the prosecutor and the victim improperly interpreted the previous judicial order at trial, and interjected their understanding of its intended scope, and (3) the trial court abused its discretion in rejecting his proposed instruction requiring that appellant “knowingly” violated the order.
We conclude that the application of the restraining order, on these facts, was vague and ambiguous, and the state did not bear its burden of proof on the essential elements of the crime charged. There is not sufficient evidence to support the verdict. We reverse.
In December 2002, K.D. met with appellant Peter Barberg and appellant’s sister to discuss the possibility of renting a house owned by appellant’s father Ralph Barberg. Because Barberg was an elderly man, he had previously delegated oversight of the rental arrangements to his children. After touring the home and discussing renting the residence, appellant escorted K.D. out to her car. According to K.D., appellant attempted to kiss her when she opened her car door to get into the vehicle.
K.D. objected to appellant’s behavior, and informed appellant’s family of her concerns. K.D. remained interested in renting the house, but found out appellant was to be responsible for any repairs in the home, and would be the initial contact-person if anything was wrong with the home. K.D. informed the family that she did not want to be put in a situation where she would be alone with appellant. To appease K.D., appellant’s family assured her that appellant would not be directly involved with the rental of the property, and that K.D. was to contact other members of the family if she had any concerns with the property.
Appellant and her five children began renting the house
in January 2003. Despite the promise
that appellant would not be involved in the maintenance of the property,
appellant occasionally visited the premises to assist in the property’s
upkeep. Because of ongoing problems with
appellant, K.D. sought a harassment restraining order against appellant. Appellant objected to a two-year restraining
order on the grounds that the house K.D. was renting was just a part of a
70-acre plus farmstead that had additional outbuildings and farmland that were
not part of the rental agreement.
Despite this unobjected to evidence, the district court issued a general
restraining order on February 18, 2003, which simply said, in pertinent part,
“[Appellant] shall stay away from where [K.D.] resides.
In late 2003, appellant acquired the Barberg farmstead from his father, including the house being rented by K.D. Appellant subsequently sent K.D. a letter indicating that he was the landlord and that he was evicting K.D. from the premises. Shortly thereafter, appellant hired Barbara Demars to manage his properties. Appellant informed Demars of the restraining order, and Demars became the liaison between K.D. and appellant.
After receiving the eviction notice, K.D. contacted Demars and informed her that she was having difficulty finding a place to move, and requested more time to move out. Demars acquiesced to K.D.’s request, and permitted K.D. to stay in the house until the end of the school year, which was the beginning of June. In mid-April, K.D. contacted Demars to inform her that she had found a new piece of rental property and that she would be moving out at the end of the month. On April 29, K.D. contacted Demars again and asked to stay until May 3 because she had to clean the house. According to K.D., Demars gave her permission to stay until the 3rd of May.
Following her conversation with K.D., Demars called appellant and informed him that K.D. would be at the house “a couple days yet for cleaning.” A few days later, on May 1, 2004, appellant went to the farm with a backhoe to clear away brush and prepare to plant trees. According to appellant, when he arrived at the property, he noticed a moving van near the house. Appellant testified that he never saw K.D., and stated that he made sure he stayed on the very outside of the driveway and did not go near the garage. Appellant claimed that he unloaded his backhoe by a machinery-shed and drove to the orchard, completely avoiding the house.
Over appellant’s claim that he did not see K.D. at the house, K.D. testified that appellant was driving his tractor in circles in the yard next to the house, and that at some point, appellant made “eye-contact” with her. K.D. subsequently contacted law enforcement who arrived 15-20 minutes later. Appellant was later charged with the misdemeanor offense of violating a harassment order.
Following a two-day jury trial, appellant was found guilty of violating the February 18, 2003, harassment restraining order. Appellant was sentenced to 90-days in jail and fined $1,000; the district court stayed 70 days of the sentence and $500 of the fine. This appeal followed.
D E C I S I O N
Appellant argues that the February 18, 2003, harassment restraining order failed to clearly define the behavior it prohibited, and, therefore, it is unconstitutional to punish him for the asserted violation. This court reviews constitutional issues de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).
initially contends that appellant’s “void for vagueness” argument is untimely
because appellant did not appeal the validity of the restraining order within
60 days of the issuance of the order. We
disagree. The state’s argument is
premised on State v. Harrington, in
which this court held that a party’s failure to appeal from the issuance of a
restraining order precludes challenges to the validity of the order in a
subsequent appeal. 504 N.W.2d 500, 503 (
The state also contends that appellant waived his vagueness challenge by failing to object to the admissibility of the harassment restraining order at trial. We do not understand the state’s argument. Certainly, the harassment restraining order would be admissible at a trial on the charge of “violating it.” If the state could not get the previous harassment restraining order into evidence, you would not have had a trial! The fact that the harassment restraining order was in evidence does not prove that appellant violated it. That proof remains the burden of the state, which, as stated, we find wanting.
that he cannot be prosecuted for violating the restraining order because the
order was vague and ambiguous. It is a
well-established principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Grayned v. City of
As noted, the
harassment order states only:
“[Appellant] shall stay away from where [K.D.] resides.
To exacerbate the issue, the state used totally inappropriate and inadmissible evidence at trial. The record reflects that at trial the following exchange occurred between the prosecutor and the victim:
Q: [K.D.], what kind of restrictions or what kind of Restraining Order did you get that you were granted by the judge? In other words, what was [appellant] prevented from doing pursuant to that order?
A: When we were at the hearing and the judge was giving – he stated there is – he has granted a two-year Restraining Order to me, and [appellant] said, “No, you can’t do that,” and that he was – he should be able to go on – this farm has outbuildings, and there was additional land. He stated that he should be able to go to the out-buildings and the additional land, and the judge clarified it in this way: He stated, “You can’t set your big toe on the end of that driveway, and she can call because you have violated the Restraining Order.”
The prosecutor then referred to this statement during closing arguments by asserting:
So, the question, ladies and gentlemen, that you have to decide is when he went out there on May 1, 2004 did he violate the Order. The State’s position is that he violated the order, ladies and gentlemen, it’s pretty clear. Just the fact of him driving out there is enough. The judge made it very clear, told him don’t even step a big toe on that property. He knew that he was not supposed to go out there.
First, we note that this exchange at trial was unobjected-to by defendant’s counsel. This is a good time to point out that if the attorney for a criminal defendant sees something that the prosecution does as plainly wrong, and then fails to object, it is not conducive after a guilty verdict to come to an appellate court and claim that the error “is so plain and egregious” that even though unobjected to, the appellate court should still take notice of the issue. If the offending evidence was that plain, make an objection and get it in the record. Having said that, we find the erroneous evidence plain enough, that, in the administration of justice, we will consider it on appeal. We simply point out it should have been plain enough for a well-timed objection at trial.
unobjected-to at trial, the admission of evidence may be reviewed by an appellate
court if there is: (1) error; (2) that
was plain; and (3) that affected substantial rights. State
v. Strommen, 648 N.W.2d 681, 686 (
First, if either party to a trial wants a court to take judicial notice of something said on the record at a prior hearing, the parties should get a transcript, prove conclusively that something was said or done in a prior judicial proceeding, and then make an in camera motion to the trial judge, arguing why part of a prior proceeding is relevant and admissible. The trial judge can then look at the offer of proof and make its decision. None of that was done here.
Next, if the previous judge, the one who issued the restraining order, made extraneous or advisory comments about what might happen if a claimed violation was back in front of him, it would have been only that, advisory, and not generally admissible in a later trial. In a civil case, a judge’s opinion (based on the facts of the case and the law) about who should win and who should lose is appropriate. Whether it is a bench trial or a jury trial, the trial judge can direct a verdict for either side in a civil case. That is absolutely not true in a criminal case. The trial judge in a criminal trial can only direct a verdict of not guilty for the defendant. It cannot constitutionally in any way, shape, or form direct a verdict in a jury trial of guilty. The trial judge in a jury trial is forbidden from giving his opinion of guilty, even if the record would seem to support it. That is exclusively the province of the jury. In a criminal case, the judge can give his opinion of innocence, and take the case away from the jury, but only for not guilty, never for “guilty.”
If the first district court judge who issued the restraining order (we have no proof that what was claimed to be said was said) had talked about “not setting a big toe on the driveway,” that would not be determinative of what a later jury might decide. The relevant portion of that restraining order, meaning “stay away from where she resides,” is admissible, but the judge’s off-the cuff later remarks, if they were said, are not an integral part of the order and not admissible at a later trial as evidence of guilt.
The prosecutor’s closing argument defines the problem. At one point the prosecutor, paraphrasing that previous remark, said, “Just the fact of him driving out there is enough.” No, just the fact of appellant driving out to that portion of his farm which was not rented to K.D. “is not enough.” But that was the gist of the prosecutor’s closing statement. With the jury hearing the victim outlining what the judge who issued the restraining order supposedly said, the damage was done and the prejudice to appellant’s right to a fair trial was apparent.
Finally, appellant argues that the district court erred by refusing his request to insert the word “knowingly” into the jury instructions. Because we are reversing appellant’s conviction for violating the restraining order on the basis of insufficient evidence to support the verdict, we need not address appellant’s other arguments.