This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Kerry Dougherty,



Filed July 3, 2006


Hudson, Judge


Hennepin County District Court

File No. 04078160


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


David Ornstein, Bloomington City Attorney, Lisa C. Netzer, Assistant City Attorney, City Hall, 1800 West Old Shakopee Road, Bloomington, Minnesota 55431 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)


            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 Bloomington in September 2003, when he was 48 years old.  Appellant’s parents are in their early 80s.  Appellant’s mother cooked and washed his clothes, and he frequently asked his parents for money.  About a year later, a Bloomington police officer responded to a call to the home in connection with an adult-protection investigation.  The officer formally asked appellant to leave and served him with a trespass notice.  Before he left, appellant asked his mother for several hundred dollars.   

            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.


In 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 (Minn. 1998); State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court assumes that the jury believed the witnesses’ testimony that supported the verdict and disbelieved any evidence to the contrary.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001).  We review issues of statutory construction de novo.  State v. Stewart, 624 N.W.2d 585, 588 (Minn. 2001). 

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. 

None 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 statute.  Cf. State v. Machholz, 574 N.W.2d 415, 421 (Minn. 1998) (striking down “catch-all” provision of harassment statute on ground that it was overly broad and violated First Amendment rights).  When a statute is unambiguous, we looks to its plain language to determine its meaning.  State v. Forsman, 260 N.W.2d 160, 164 (Minn. 1977).  The plain language of subdivision 1 defines the acts listed in subdivision 2 as harassment when the defendant intentionally commits the actions and has reason to know he or she is harassing the victim, and the acts cause the victim to feel frightened, threatened, or intimidated.  Minn. Stat. § 609.749, subd. 1.  No proof of specific intent is required.  Id., subd. 1a.  Appellant’s father testified the acts caused him to feel threatened or frightened.  Thus, appellant’s actions fell directly within the scope of activity prohibited by the statute. 

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.

In 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 (Minn. 1995).  We cannot retry facts on appeal, but we must assume that the jury believed the state’s witnesses and disbelieved contradictory evidence.  State v. Odell, 676 N.W.2d 646, 648 (Minn. 2004).  And we decline to consider arguments based on appellant’s interactions with police or his family that do not directly relate to the charges and were not presented at trial.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (rejecting appellant’s attempt to raise issue not raised in district court).  

Appellant 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 U.S. Const. Amend. VI.  In certain cases, when hearsay is admitted at trial, the Confrontation Clause may be violated if a defendant is not given the opportunity to cross-examine the person who made the statement.  State v. King, 622 N.W.2d 800, 807 (Minn. 2001). But the state presented none of his mother’s hearsay statements at trial, relying instead on his father’s testimony and police observation of his mother’s actions, and appellant did not exercise his right to call his mother as a witness.  See State v. Koonsman, 281 N.W.2d 487, 490 (Minn. 1979) (rejecting defendant’s confrontation-clause claim when state did not call victims to testify at omnibus hearing because defense had right to call victim as witness). 

Appellant 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, 534 (Minn. 1989), and did not abuse its discretion in ruling on the defense hearsay objections.  Any inconsistency between the testimony of appellant’s brother and the testimony of appellant’s father was properly considered by the jury in weighing the evidence.  

Although 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. Anderson, 379 N.W.2d 70, 80 (Minn. 1985) (Schwartz hearing only required when defendant establishes, beyond mere speculation, prima facie case of jury misconduct). 

Appellant 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 (Minn. 2004) (quotation and citations omitted).  The evaluation of an ineffective-assistance-of-counsel claim also permits the court to make a threshold evaluation of actual prejudice when assessing the claim.  Id. Appellant has failed to show actual prejudice to him from the conduct of his attorneys.  And under the doctrine of separation of powers, the prosecuting decision rests entirely in the discretion of the prosecutor, who is a member of the executive branch of state government.  State v. Smith, 270 N.W.2d 122, 124 (Minn. 1978).

The evidence presented sufficiently supported the jury’s verdict; appellant’s additional arguments lack merit.  We affirm.