This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Luis Roberto Zaldivar,



Filed ­­­November 7, 2006

Reversed and remanded

Harten, Judge*


Blue Earth County District Court

File No. VB-04-1625


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


Eileen Wells, Mankato City Attorney, Linda Boucher Hilligoss, Assistant City Attorney, 10 Civic Center Plaza, P. O. Box 3368, Mankato, MN  56002 (for respondent)


John M. Stuart, State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414; and


Paul E. Grabitske, Assistant Public Defender, 115 East Hickory Street, Suite 200, P. O. Box 1056, Mankato, MN  56002 (for appellant)


            Considered and decided by Klaphake, Presiding Judge; Ross, Judge; and Harten, Judge.


U N P U B L I S H E D   O P I N I O N




            A jury found appellant guilty of violating an order for protection (OFP).  Appellant challenges the district court’s denial of his requests for a jury instruction defining “contact” and a judicial determination that only the last of three OFP’s was in effect at the time of the incident.[1] Because we conclude that the district court erred in failing to define the term “contact” and to determine which OFP was in effect, we reverse and remand for a new trial.



            In April 2003, B.P. obtained an OFP (OFP 1) against appellant Luis Roberto Zaldivar, from whom she was separated but not yet divorced.  Appellant was ordered to “have no contact, either direct or indirect” with B.P.  In May 2003, OFP 1 was modified by OFP 2, which allowed B.P. to remove personal effects from appellant’s home.  OFP 2 provided that “the previous order of the court . . . shall remain in full force and effect.”  In October 2003, an “Order to Modify OFP” (OFP 3) ordered appellant to vacate the residence so that B.P. could occupy it.  OFP 3 did not refer to OFP 1 or OFP 2. 

            After an incident in November 2003, appellant was charged with misdemeanor violation of an OFP.[2]  Appellant moved to dismiss for lack of probable cause.  The district court denied the motion, appellant’s request for a jury instruction on a legal definition of “contact,” and for a judicial decision that only OFP 3 was in effect in November 2003.  The jury found appellant guilty. 


1.         Jury Instruction.

            Appellant proposed a jury instruction defining the term “contact.”  The district court declined to give that instruction or any instruction defining “contact.”   The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  The focus of our analysis is on whether the refusal resulted in error.  State v. Kuhnau,  622 N.W.2d 552, 555 (Minn. 2001).

            The district court acknowledged to the parties’ attorneys that “[contact] is an ambiguous term.  I don’t dispute that.  . . .  I’m sure that the three of us . . . could come up with a lot of definitions that would apply.  I’m going to leave it to the jury.”  But definitions are not questions of fact for a jury; they are questions of law for a court.   See, e.g., City of Minneapolis v. Church Universal and Triumphant, 339 N.W.2d 880, 887 (Minn. 1983) (“[W]hether a lay or dictionary definition as opposed to a sociological, doctrinal definition applies . . . is a question of law for this court.”); Ross v. Dep’t of Human Servs., 412 N.W.2d 803, 806 (Minn. App. 1987) (whether an individual worked during certain hours “is solely a question of law, turning upon the definition of ‘employed’”). 

            The district court stated that it found appellant’s proposed definition “too limiting.” If that definition was not a correct statement of the law, there was no abuse of discretion in refusing to give it.  See Kuhnau, 622 N.W.2d at 556 (instruction must fairly and adequately explain the law).   But the failure to give any instruction on the appropriate definition of “contact” was prejudicial error that entitles appellant to a new trial.[3]

2.         Admission of OFP 1 and OFP 2.

            Appellant argues that he was denied a fair trial because the district court erred in allowing all three OFPs to go to the jury and in declining to decide as a matter of law that only OFP 3 was in effect at the time of the incident.  Evidentiary rulings are within the discretion of the district court.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  But “[t]he court, not the jury, determines the law of a case, and the jury decides the factual issues based on the law submitted to them.”  Hughes v. Quarve & Anderson Co., 338 N.W.2d 422, 425 (Minn. 1983) (citing Anderson v. Ohm, 258 N.W.2d 114, 117 (Minn. 1977)).

            At the pretrial hearing, the district court acknowledged that “[appellant can argue] that the Order for Protection that was first issued was amended by the third one to exclude everything except what was in that third [o]rder.  [The state] can argue that’s nonsensical.  The jury may agree; they may not.” 

            But whether one OFP invalidates another is not a jury question.  “It is the [district] court’s duty to instruct the jury on the law and not to submit a regulation to the jury for its own interpretation.”  Anderson, 258 N.W.2d at 117 (rejecting argument that the district court “should not have defined [] part of the regulation but should have submitted to the jury” the question of whether a party had complied with the regulation); see also Hughes, 338 N.W.2d at 425 (rejecting argument that, in case concerning adolescent, district court should have given instructions on both children and adults and holding that it is “inappropriate for the court to allow the jury to choose which rule of law to apply to the facts”). 

            The district court erred in deferring to the jury the decision of which OFP was in effect.  Appellant is entitled to a new trial on that basis also.

            Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant also challenges the denial of his motion to dismiss for lack of probable cause, but that denial is not appealable. See Minn. R. Civ. App. P. 103.03 (denial of motion to dismiss not among appealable orders).

[2] An individual is guilty of a misdemeanor if, knowing of the existence of an OFP, he violates it.  Minn. Stat. § 518B.01, subd. 14(b) (2002).

[3] Appellant also argues that the lack of definition of prohibited conduct deprived him of his right to due process.  Respondent claims that appellant raises the due process argument for the first time on appeal, and appellant did not file a reply brief to refute this claim.  This court does not generally address arguments not presented to the district court.  Johnson v. State, 673 N.W.2d 144, 147 (Minn. 2004).  Therefore, appellant’s due process argument is not properly before this court.