This opinion will be unpublished and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
Robyn Colleen McDaniels,
Filed January 3, 2006
Affirmed in part, reversed in part, and remanded; motion to strike granted
Becker County District Court
File No. K7-03-1203
Mike Hatch, Attorney General, Thomas R. Ragatz, Tiernee M. Murphy, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Becker County Attorney,
Stuart, State Public Defender, Jodie L. Carlson, Melissa V. Sheridan, Assistant
Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In these consolidated appeals from convictions of harassment by telephone and e-mail and violation of a harassment restraining order, appellant contends that Minnesota does not have jurisdiction over this dispute, that Becker County is not the proper venue, that her defense counsel was ineffective, that she was denied her constitutional right to confrontation, that her consecutive sentences were erroneously imposed, and that the district court abused its discretion by ordering her to pay restitution. Because we find no reversible error, we affirm the convictions and the restitution order. But because the district court erred in sentencing, we reverse the sentences and remand for resentencing.
Robyn Colleen McDaniel and K.S. were married in 1981 and divorced 11 years
later; they have one child together, O.L.S.
K.S. obtained sole physical custody of O.L.S. and now lives in
In 2002, the Maricopa County District Court issued an injunction against McDaniels after K.S. and L.S. reported that McDaniels had made harassing telephone calls and sent harassing letters and e-mails to them. The injunction was renewed in March 2003.
Around the end of July 2003, K.S. and L.S. again began receiving harassing telephone calls and e-mails from McDaniels. Over the course of two months, McDaniels made over 300 telephone calls to K.S. and L.S.’s home. She regularly called in the early-morning hours, around 2:00 or 3:00 a.m., and on at least one occasion she made 40 phone calls in one day. Sometimes McDaniels requested to speak with O.L.S., but at other times McDaniels threatened K.S. with violence or made inappropriate remarks that L.S. was a prostitute or that O.L.S. sold crystal meth.
The e-mail messages were similar. There were e-mails depicting guns, and e-mails with references to “Osama” and “Saddam” and to “spending eternity” watching children being tortured. One message, which was sent to the Becker County Attorney’s Office, FBIjobs.com, The New York Times, and various other e-mail addresses, stated that O.L.S. was “severely being abused” by K.S. and L.S., and listed their address and telephone number. Another message, sent to the Becker County Attorney’s Office, a law firm, The New York Times, and various other individuals, had an attachment of a nude photo of K.S. taken some years prior.
and L.S. contacted the Maricopa County Police Department in
D E C I S I ON
1. Sufficiency of the Evidence for Jurisdiction and Venue
McDaniels claims that the evidence
is insufficient to show that
McDaniels first argues that
McDaniels does not deny that she
made the telephone calls and sent the e-mails in question. She argues that the evidence fails to show that
her conduct took place in
The injunction against harassment
qualifies as a “protection order,” and it satisfies the due-process
requirements under the statute. The
next argues that because the state failed to prove that the harassing e-mails
and telephone calls originated in
accused waives her right to object to venue if an objection is not asserted
prior to trial. Minn. R. Crim. P. 24.01,
cmt.. Yet, such failure to object does
not relieve the state of the burden to prove venue. State
Proper venue may be proven by
circumstantial or direct evidence. State v. Larsen, 442 N.W.2d 840, 842 (
oral argument, McDaniels asserted that the state failed to prove that the
specific e-mails and telephone contacts that were harassing originated from
addition, the purpose of requiring proper venue was served. McDaniels faced less hardship by being tried
2. Ineffective Assistance of Counsel
McDaniels asserts that her counsel was ineffective for two reasons: (1) his failure to make a record of her waiver to testify fell below an objective standard of reasonableness, and (2) the failure to make such a record was prejudicial.
ineffective-assistance-of-counsel claim should be raised in a postconviction
hearing rather than on direct appeal because “[a] postconviction hearing
provides the court with additional facts to explain the attorney’s decisions,
so as to properly consider whether a defense counsel’s performance was
deficient.” State v. Gustafson, 610 N.W.2d 314, 321 (
To prevail on this claim, the
defendant must affirmatively prove hat his counsel’s representation “fell below
an objective standard of reasonableness” and “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Gates v. State, 398 N.W.2d 558, 561 (
a. Right to Testify
McDaniels asserts that her counsel’s
representation fell below a reasonable standard because counsel did not make a
record regarding her right to testify, and, therefore, she could not have
knowing or voluntarily waived this right.
“The defendant’s right to testify in his or her own defense is protected
by both the [Fourteenth] Amendment Due Process Clause of the Federal
McDaniels does not argue that her attorney failed to advise her of the right to testify. Rather, she contends only that the record is silent with respect to whether she (1) wanted to testify, (2) waived her right, or (3) knew she had the right to testify. The silent record does not show that her attorney’s conduct fell below an objective standard of reasonableness, nor does it show that because of her counsel’s conduct the verdicts were affected. Therefore, we apply the rebuttable presumption that McDaniels voluntarily and knowingly waived her right to testify.
McDaniels contends that the failure to make a record regarding her right to testify was prejudicial. McDaniels seems to argue that because the district court prohibited her witnesses from testifying about her motives for calling K.S. and L.S., McDaniels, without taking the stand herself, could not explain her conduct. Yet, this argument relates to the district court’s ruling on admissibility of testimony; it does not show how the failure to record her waiver prejudiced her right to a fair trial.
Neither the record nor McDaniels’s arguments shows how her counsel’s conduct fell below reasonable standards or how she was prejudiced by not having a record of her waiver if her right to testify.
3. Right to Confrontation
McDaniels argues that the district
court denied her constitutional right of confrontation when it removed her from
the courtroom. The Confrontation Clause
of the Sixth Amendment guarantees a criminal defendant the right to be present
at all stages of his or her trial.
The district court has broad
discretion in dealing with “disruptive, contumacious, stubbornly defiant
defendants.” State v. Richards, 495 N.W.2d 187, 197 (
McDaniels began crying during the prosecutor’s rebuttal argument, making it difficult for the prosecutor to continue because jurors kept looking around the prosecutor to see McDaniels. Out of the presence of the jury, the judge warned McDaniels that her behavior was disruptive to the court and that the court had the authority to exclude her from the proceedings.
At first McDaniels indicated that she would try to be quiet, but then she told the court that she could not stop crying. Upon the defense counsel’s request, the judge ordered McDaniels to be moved to a location where she could continue to watch the proceedings, but she could not be heard or seen by the jury. When the jury returned, the judge explained that McDaniels was not able to be present at this time, but that the proceedings would continue.
McDaniels asserts that there is nothing on the record to show she was crying so loudly as to disrupt the trial. But the prosecutor stated on the record that her crying was distracting the jurors from his closing argument, and the judge indicated the same. After being warned, McDaniels insisted that she could not stop her behavior. This court will not disturb the district court’s findings unless they are clearly erroneous. See Cassidy, 567 N.W.2d at 709-10. Therefore, we conclude that the district court did not abuse its discretion by removing her from the proceedings.
a. Consecutive Sentences
McDaniels argues, and the state concedes, that the district court improperly imposed consecutive sentences on the harassment by e-mail and harassment by telephone charges. We agree.
sentences are either presumptive, or permissive, or imposed as a departure from
presumptive concurrent sentencing.
McDaniels’s sentences for harassment by e-mail and harassment by telephone should
have been concurrent, sentencing McDaniels to consecutive sentences constituted
a departure for which written findings were required.
The district court noted at sentencing that McDaniels was “unrepentant.” But this is not a factor identified in the guidelines as one that would permit consecutive sentences. Therefore, we remand for resentencing of McDaniels’s telephone and e-mail harassment convictions.
b. Separate Sentence for Violating Harassment Order
McDaniels argues that the district court improperly imposed a separate sentence for her conviction of violating the harassment restraining order. Her position is that she was already punished for violating this order when she was sentenced for harassment by e-mail and telephone. We agree.
Stat. § 609.035, subd. 1 (2002), prohibits serialized prosecutions and
multiple punishments. A defendant who commits
multiple offenses against the same victim during a single behavioral incident
may be sentenced for only one of those offenses. State
v. Bookwalter, 541 N.W.2d 290, 293 (
established facts, whether offenses are part of a single behavioral incident
presents a question of law, which this court reviews de novo. State v. Marchbanks, 632 N.W.2d 725,
c. Unity of Time and Place
McDaniels’s conduct occurred from July 23, 2003, through September 4, 2003. During that period, there were 345 telephone calls and 14 e-mails, the majority of which were initiated by McDaniels. The determination of whether there is unity of time rests on whether the conduct was continuous throughout. Compare State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000) (indicating that a pattern of harassment beginning in the summer of 1996 and ending in June of 1997 was deemed a single time period), with Richardson, 633 N.W.2d at 888-89 (concluding that there was no unity of time when the conduct was broken and sporadic over a period of four years); but see State v. Bowen, 560 N.W.2d 709, 712 (Minn. App. 1997) (stating that a pattern of conduct occurring over a span from February 13 until April 15 could not be a single incident). Because McDaniels’s behavior was continuous throughout the two months, there is sufficient unity of time.
respect to the unity of place, the telephone calls and e-mails were received at
K.S. and L.S.’s residence in
Because the distinction between harassment on the home telephone line, the home office line, and via e-mail is too attenuated to reasonably be construed to be separate places, we find that there is sufficient unity in time and place.
d. Single Criminal Objective
McDaniels’s intent was to harass K.S.
and L.S. The mere fact that she violated
the harassment restraining order by engaging in harassing conduct does not
separate her behavior into multiple criminal objectives. Under the harassment statute, McDaniels
simply had to engage in intentional conduct, which she knew would cause K.S. to
feel frightened, threatened, oppressed, persecuted, or intimidated.
Because McDaniels’s conduct stemmed from a single behavioral incident, and because the imposition of sentences for violation of the harassment order and for harassment itself is prohibited by Minn. Stat. § 609.035, subd. 1, we reverse and remand to the district court for resentencing.
5. Restitution Order
McDaniels asserts that the district court abused its discretion by granting restitution, concluding that (1) K.S. estimated his losses, rather than providing specific documentation; and (2) the district court failed to consider McDaniels’s financial situation when determining the amount of restitution.
Generally, “trial courts are given
broad discretion in awarding restitution.”
State v. Tenerelli, 598 N.W.2d
668, 671 (
McDaniels asserts that K.S.’s
affidavit is unreliable because it was supported only by K.S.’s word rather
than by documentation. K.S. submitted an
affidavit that outlined various expenses totaling $5,557.82. He first outlined his lost wages, which he
calculated based on a base salary from his 2004 employment. He then divided his 2004 base salary by 50
work weeks in one year, and divided again by 40 hours per work week to obtain
his hourly work value of $29.11 per hour.
His estimate of lost time was 165 hours, which included time spent cataloguing,
recording, copying, filing reports, and corresponding with various individuals
regarding this issue. He also requested
$70 reimbursement for depression and sleep-disorder medication prescribed to his
wife, as well as the counseling expenses that were not reimbursed by
insurance. Finally, K.S. requested
reimbursement for his son’s airplane ticket to
restitution statute requires only that the victim submit, through affidavit or
other competent evidence, (1) the items of loss, (2) the amount of restitution
claimed, and (3) the specific reasons justifying the amount.
The district court determined that McDaniels failed to satisfy her statutory burden. McDaniels asserted that K.S.’s affidavit was a “speculative . . . vindictive attempt . . . to harm me and seek revenge” and that she “should not be liable for expenses based on mere guesswork.” McDaniels did not give any explanation or produce evidence to contest the specific figures that K.S. submitted. The court concluded that she did not provide the requisite specificity to successfully challenge the award of restitution.
Even if McDaniels offered a
sufficiently specific objection, the challenge would still fail, as the state
satisfied its burden. K.S.’s affidavit
provides detailed calculations of lost wages, which were accompanied by
verification of his annual salary. It
also calculates his out-of-pocket expenses for the counseling and medical bills
that were directly related to the harassment.
The court found that his affidavit was credible. The caselaw is clear that this court gives
broad discretion to the district court’s credibility determinations. Haefele
v. Haefele, 621 N.W.2d 758 (Minn. App. 2001) review denied (
Additionally, the court did not fail
to consider McDaniels’s financial ability to pay. In determining whether to order restitution
and in what amount, the court must also consider the defendant’s income,
resources, and obligations.
The district court noted that it was required to consider the “income, resources, and obligations of the defendant” when setting the restitution amount. K.S. informed the court that McDaniels was more than $12,000 in arrears for child-support payments. Hence, the court was aware of McDaniels’s financial situation; nothing in the statute or the caselaw precludes ordering restitution for a defendant who is in child-support arrears.
Because McDaniels failed to satisfy her burden of production in contesting the order for restitution, and because the district court adequately accounted for McDaniels’s ability to pay, the restitution order is affirmed.
6. Pro-se Supplemental Brief and Appendix
The rules of criminal procedure allow appellants to submit pro-se supplemental briefs and appendices. Minn. R. Crim. P. 28.02, subds. 5(14), (17). However, the record on appeal “shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.” Minn. R. Crim. P. 28.02, subd. 8.
McDaniels’s supplemental brief consists of numerous e-mails, photographs, letters, and drawings. Some of these documents were offered as exhibits in the district court, but the majority of the brief was not offered or filed with the court. In the last few pages of her brief, McDaniels argues that her supplemental brief should be reviewed, concluding that the trial exhibits were edited to benefit the state. But because the majority of the documents contained in the supplemental brief were not presented to the district court, we review only those documents that were submitted at trial. We conclude that they do not support McDaniels’s claims for relief and grant respondent’s motion to strike appellant’s pro se supplemental brief and appendix.
Affirmed in part, reversed in part, and remanded; motion to strike granted.
 Given the state’s candid acknowledgment of the district court’s error in sentencing, we do not need to address McDaniels’s second contention that the district court erred by imposing a consecutive sentence using a criminal-history score of four.