This opinion will be unpublished and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
Filed July 3, 2006
Hennepin County District Court
File No. 04078160
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
John M. Stuart, State Public
Defender, Davi E. Axelson, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Kerry Dougherty challenges his conviction of harassment, arguing that evidence of his attempts to return to his parents’ house after they had him removed because of his behavior was insufficient to support his conviction. Appellant argues that his persistent attempts to resume contact with his parents do not lie within the scope of activity prohibited by the harassment statute. Because the evidence reasonably supports appellant’s conviction and his additional pro se arguments lack merit, we affirm.
Appellant Kerry Dougherty temporarily
moved into his parents’ house in
In November 2004, appellant called his parents from the hospital and indicated he had been assaulted and his car stolen. They allowed him to stay briefly in their home but then requested that he leave. When he refused, they called another son and his wife to help remove appellant from the house. The police were called, and appellant left. About two days later, appellant left dirty clothes on the front step to be cleaned. A few days after that, appellant went to the location of his mother’s routine hair appointment, spoke to his father waiting in the car, and asked for money to get to a job. His father refused.
On November 20, a police officer involved in the case saw appellant walking four blocks from his parents’ house and informed him that if he had been at his parents’ house, he would be violating the trespass order. On November 24, appellant’s mother obtained an ex parte temporary order for protection ordering that appellant stay away from the residence.
From September to November, appellant made numerous phone calls to his parents asking for money, one day as often as every 20 minutes. Sometimes his parents answered; other times they let it ring. When he returned to the house on November 26, police arrested him.
The state charged appellant with two counts of gross-misdemeanor harassment under Minn. Stat. § 609.749, subds. 1, 2 (2004). At a jury trial, appellant’s father testified that appellant’s actions made him feel threatened or frightened; appellant’s mother did not testify. Appellant testified that he asked his mother for money to travel to speak to a person about paying him for songs that she had used and that he tried to contact his parents to retrieve a music poster that he had created in order to market the poster. The jury convicted appellant of both counts, and this appeal follows.
D E C I S I O N
a challenge to the sufficiency of the evidence, this court reviews the record
in the light most favorable to the jury’s verdict and asks “whether the jury
could reasonably find the defendant guilty given the facts in evidence and the
legitimate inferences which could be drawn from those facts.” State
v. Miles, 585 N.W.2d 368, 372 (
Appellant was convicted of violating Minn. Stat. § 609.749, subds. 1 and 2 (2004), which prohibits intentional conduct that the actor knows, or has reason to know, would under the circumstances “cause the victim . . . to feel frightened, threatened, oppressed, persecuted, or intimidated,” and causes that reaction. Minn. Stat. § 609.749, subd. 1. Specifically, the jury entered verdicts finding that appellant (a) returned to his parents’ property without claim of right or consent, in violation of Minn. Stat. § 609.749, subd. 2(3); and (b) repeatedly made telephone calls to his parents, in violation of Minn. Stat. § 609.749, subd. 2(4). Appellant acknowledges that he intentionally committed the acts listed in subdivision 2. But he argues that his conduct lies outside the scope of activity that the legislature intended to prohibit as harassment because (a) it does not rise to the level of other actions specifically listed in the subdivision; (b) he had no subjective intent to cause harm; and (c) he should not be penalized because his conduct occurred within the context of a family situation.
of these arguments has merit. Although
appellant argues that his acts do not rise to the level of other acts listed in
the statute, such as stalking and making false allegations against police
officers, he has alleged no specific constitutional defects in the
Further, appellant’s argument characterizing his persistent unwelcome acts as “genuine attempts at coping” with a difficult family situation is disingenuous. The jury found that appellant’s behavior in repeatedly returning to his parents’ home, despite being asked to leave, along with his continuing phone calls, when his father testified he was afraid, constituted harassment under the statute. We agree.
a pro se supplemental brief, appellant makes additional arguments, including a
challenge to witness credibility. “As a
general matter, judging the credibility of the witnesses is the exclusive
function of the jury.” Dale v. State, 535 N.W.2d 619, 623 (
argues that he was deprived of his Sixth Amendment right to confrontation by
his inability to confront his mother, a complainant, as a witness. See
argues that his conviction was improperly based on hearsay evidence and that
his brother committed perjury. The
district court has broad discretion to determine the admissibility of evidence,
State v. Boitnott, 443 N.W.2d 527,
appellant claims that his right to an impartial jury was violated because the
jury foreman lied to the court about previously knowing appellant, the defense
never requested a Schwartz hearing on
jury misconduct and never presented a showing of misconduct entitling appellant
to such a hearing. See State v.
argues he was denied the effective assistance of counsel because his first
attorney “seemed like he was working for the prosecution” and his second lawyer
would not inform the court of his brother’s perjury. To prove ineffective assistance of counsel,
appellant must show that his attorney’s representation “fell below an objective
standard of reasonableness, and that a reasonable probability exists that the
outcome would have been different but for counsel’s errors.” Zenanko
v. State, 688 N.W.2d 861, 865 (
The evidence presented sufficiently supported the jury’s verdict; appellant’s additional arguments lack merit. We affirm.