This opinion will be unpublished and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
Erik Lowhorn, et al.,
Ramsey County District Court
File No. C405100248
George C. Riggs,
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*
Appellant challenges the issuance of a harassment restraining order, arguing that there is insufficient admissible evidence to support the order and that he was denied the right to cross-examine respondents. Because there is sufficient evidence in the record to support the order and appellant was not denied an opportunity to cross-examine respondents on relevant issues, we affirm.
The district court granted an ex parte harassment restraining order to respondents Eric and Kelly Lowhorn against their neighbors, Doris Heilman and appellant Terry Harstad. The order was based on the Lowhorns’ affidavits claiming that Harstad frequently called them “child molesters” in public, attempted to pick fights with them, expressed his hope that Kelly Lowhorn would die, routinely took pictures of them, threatened to shoot them, and generally tormented them.
At an evidentiary hearing requested by Harstad, Erik Lowhorn testified that Harstad called him a “child molester” several times, beginning in 2003. Erik Lowhorn testified specifically that (1) on two occasions while he was playing football with neighborhood children, Harstad called him a “child molester”; (2) Harstad told neighborhood children to stay away from the Lowhorns because they were “child molesters”; (3) Harstad told potential buyers of the Lowhorns’ home, “Don’t buy that house, they’re child molesters”; and (4) in March or April 2005, Harstad told children in the neighborhood to “[g]o play at the child molester’s house, go get fondled.”
Erik Lowhorn also testified that on approximately 20 occasions, while the Lowhorns were either outside their home or leaving in their car, Harstad took pictures of the Lowhorns. Erik Lowhorn testified that Harstad threatened both of the Lowhorns’ lives by commenting that he would “take [the Lowhorns] out.” Harstad and Heilman each cross-examined Erik Lowhorn.
Kelly Lowhorn testified that on 25 to 30 occasions, Harstad acted as if he were videotaping or photographing the Lowhorns. She testified, “I have heard him on several occasions say one way or another, he’s taking us out whether it’s with his hands or other things.” She testified that Harstad said “that he wanted to kill me” and called Erik Lowhorn a “child molester.” Kelly Lowhorn also testified that on National Night Out, Harstad approached her and asked, “Don’t you think it’s funny that a 20-year old [referring to Erik Lowhorn] is playing with little children?” When she asked Harstad what he meant, Harstad replied, “That sure is a sure sign of a child molester.”
Jeremy Hellpap, a police officer who occasionally responded to the Lowhorns’ complaints about Harstad, testified on behalf of the Lowhorns. He was asked what prompted the Lowhorns’ complaints against Harstad. Officer Hellpap testified that “the Lowhorns told me that the incident that started [the arguments] was that the Harstads [sic] accused them of being child molesters.” Neither Harstad nor Heilman objected to this testimony. On cross-examination of Hellpap by Heilman, the district court sustained a hearsay objection by the Lowhorns’ attorney and instructed Heilman that “[a]nything that somebody has heard from someone else can’t be repeated unless they’re here present to be questioned. So, you can ask the officer what he knows from his own experience and contacts, but not what he may have heard from somebody else.” Officer Hellpap also testified that a housing-park manager told him that she believed that the arguments between the parties started when Harstad called the Lowhorns “child molesters” but that the manager “later wished to retract her statement.”
The hearing was not concluded on the day it was scheduled and was continued. Erik Lowhorn asked to be excused from appearing at the continued hearing for work-related reasons. Heilman objected, stating that she might call him as a witness. The district court excused Erik Lowhorn from appearing, noting that “if there is a reason to recall Mr. Lowhorn, we’ll have to address it at that point.”
When the hearing resumed, Harstad testified that he had not engaged in any of the alleged conduct. Heilman testified that she had never called the Lowhorns child molesters. At the first hearing, a witness who had been present at the National Night Out gathering testified that she never heard Harstad call the Lowhorns “child molesters.”
Heilman and Harstad told the district court that they wanted to recall Erik Lowhorn to question him about statements he allegedly made to the police that Harstad and Heilman were about to be evicted. The district court denied the request, stating that “[w]e have had about four and a half hours of testimony and I can’t see where Mr. Lowhorn’s taking the stand is going to alter what I have heard to this point.”
The district court found that reasonable grounds existed to believe that Harstad harassed the Lowhorns by threatening them in April 2005 and by calling Eric Lowhorn a “‘child molester’ on multiple occasions, including comments to potential home buyers [and an] office manager.” The district court ordered Harstad not to harass or have contact with the Lowhorns and to stay away from their home and places of employment. The district court denied the Lowhorns’ request for a restraining order against Heilman. This appeal followed.
A harassment restraining order can be granted when the
district court finds that reasonable grounds exist to believe that the
respondent has engaged in harassment.
I. Hearsay evidence
Harstad first argues that the
district court improperly admitted hearsay evidence from Officer Hellpap that Harstad
had called the Lowhorns child molesters.
Absent an erroneous interpretation of the law, the question of whether
to admit evidence is within the district court’s discretion. Kroning
v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (
Harstad did not object to Officer Hellpap’s testimony that the Lowhorns told him that their complaints with Harstad began when he called them “child molesters,” and we conclude that the statement was not hearsay. The testimony was not offered to establish the truth of what was stated by the Lowhorns, but only to establish the officer’s understanding of the nature of their complaint. The district court did not abuse its discretion by permitting the testimony of Officer Hellpap.
Even if the statement had been
offered to establish the truth of what was said, Harstad failed to object to
the testimony. “It is universally held
that hearsay evidence received without objection is competent and becomes part
of the evidence, usable as proof to the extent of whatever rational persuasive
force it may have.” Nelson v. O’Neil Amusements, 274
II. Sufficiency of evidence
Harstad also argues that the
district court’s finding of harassment was “contradictory to actual witness
testimony.” The district court’s
findings of fact will not be set aside unless clearly erroneous, and deference
is given to the district court’s ability to judge the credibility of
III. Ability to cross-examine Erik Lowhorn
Harstad argues that the district
court erred by not permitting him to recall Eric Lowhorn as a witness. We review the district court’s denial of a
request to recall a witness for an abuse of discretion.
In this case, Erik Lowhorn testified on the first day of the hearing, and both Harstad and Heilman cross-examined him. The reason given to the district court for recalling Erik Lowhorn did not relate to the Lowhorns’ claims against Harstad. Based on the record, the district court did not abuse its discretion by denying Harstad’s request to recall Erik Lowhorn.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.