This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Concurring specially, Klaphake, Judge
Stearns County District Court
File No. T4-05-9389
Lori Swanson, Attorney General, 1800
Jan F. Petersen, St. Cloud
John M. Stuart, State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414; and
Denis E. Hynes, Jennifer Holson Chaplinski, Assistant Public
Defenders, 816 West St. Germain Street, Suite 410,
Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.
Appellant challenges his misdemeanor conviction for violation of an order of protection. Appellant argues that the district court had no authority to issue an order for protection requiring him to have “no contact” with the petitioner and that his conviction is not supported by sufficient evidence. We affirm.
Appellant Alfredo Velazquez married A.V. in May 2002. They have one minor child, T.V. In January 2005, A.V. filed a petition for an order for protection. The petition stated that A.V. had been involved with appellant in several domestic-abuse court actions beginning in 2002. In her petition, A.V. alleged: “An emergency exists and I fear immediate and present danger of further acts of domestic violence.” The district court issued an ex parte order for protection. A hearing was held on February 1, 2005, and the district court issued a post-hearing order for protection. That order provides:
1. [Appellant] shall not commit acts of domestic abuse against the [p]etitioner or the child . . . .
2. [Appellant] shall have no contact, either direct or indirect, with [p]etitioner . . . whether in person, with or through other persons, by telephone, letter, or in any other way . . . except through attorney for dissolution purposes only and phone contact for visitation purposes only, [and] a note book for communication purposes for child.
3. [Appellant] shall not enter [p]etitioner’s residence . . . or any future residence, even if invited to do so. . . .
On May 30, 2005, A.V.’s mother called law enforcement to report that she was concerned that A.V. and T.V. were with appellant, that she was worried that appellant would kill them, and that there was an order for protection outstanding. Early in the morning on May 31, 2005, police officers began searching for A.V. and T.V. Not finding them at A.V.’s residence, the officers ultimately went to appellant’s address to investigate. The officers spoke with the homeowner, who asked appellant to come upstairs from his basement apartment to speak with the officers. Appellant denied that A.V. and T.V. were in the basement. The officers asked if they could go downstairs. Appellant said yes, but asked the officers to wait a moment while he made sure that the female downstairs was properly dressed. Appellant then went downstairs, returned shortly thereafter, and allowed the officers into the basement.
Downstairs, the officers observed children’s clothing, female clothing, a suitcase with A.V.’s name on it, and a purse. Appellant said that the female had left. One of the officers checked the backyard, where he found A.V. and T.V. sitting on a sleeping bag approximately 100 feet behind the house. A.V. told the officer that she was hiding because she did not want appellant to get in trouble again. In a statement taken later that morning, A.V. said that she had been with appellant since the prior evening and that appellant had not assaulted her. Other records indicate that appellant had been with A.V. for four days.
The officers arrested appellant for violating the order for protection. Appellant then waived his right to a jury trial and entered a Lothenbach plea. The district court found appellant guilty of violation of an order for protection under Minn. Stat. § 518B.01, subd. 14(b) (2004), and sentenced appellant to 90 days in jail and a $1,000 fine with all but two days of jail time and $50 fine stayed. This appeal follows.
first issue is whether Minn. Stat. § 518B.01, subd. 6(a) (2006), gives district
courts the authority to order a respondent to have “no contact,” with a
petitioner, when issuing an order for protection. Appellate courts review questions of statutory
interpretation de novo. State v. Fleming, 724 N.W.2d 537, 539 (
The Minnesota Domestic Abuse Act authorizes 11 specific forms of relief and then a general provision grants the district court the authority to
order, in its discretion, other relief as it deems necessary for the protection of a family or household member, including orders or directives to the sheriff or other law enforcement or corrections officer as provided by this section.
Minn. Stat. § 518B.01, subd. 6(a)(1)-(12)
(2006). We have held that this statute
grants district courts discretion to issue orders for protection providing both
specific and general relief as necessary for the protection of the parties. Hall v.
Hall, 408 N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). This court has characterized the Domestic
Abuse Act as “a remedial statute,” which receives “liberal construction.” Swenson
v. Swenson, 490 N.W.2d 668, 670 (
the parties agree that the authority for the district court’s directive,
“[appellant] shall have no contact, either direct or indirect, with
[p]etitioner . . . whether in person, with or through other persons, by
telephone, letter, or in any other way,” is not found in the first eleven clauses
of Minn. Stat. § 518B.01, subd. 6(a).
Those provisions authorize specific action. Minn. Stat. § 518B.01, subd. 6(a) (1)-(11). The question is whether the district court
has discretion to order no “contact” between a respondent and petitioner under
the general clause which authorizes court action as a part of “other relief . . . necessary for the protection of . . . .”
Appellant argues that the word “contact” requires him to play an initiating role. In the alternative, appellant asserts that constitutional due process standards are violated if clause 12 of Minn. Stat. § 518B.01, subd. 6(a), authorizes no-contact orders that are so broad that they would be violated even if the victim initiates the contact against the perpetrator’s wishes and the perpetrator is a passive, unwitting participant.
Although appellant poses a troublesome challenge, the record in this case does not require that we resolve that challenge. Here, the record does not establish that A.V. went to appellant’s residence uninvited or that A.V. forced herself on appellant. It does not appear that appellant was surprised by A.V.’s presence. In fact, there is evidence that A.V. was with appellant for several days before law enforcement arrived. When the officers arrived, appellant both told them that A.V. was not present and asked for time so that his female companion could dress. Appellant then went downstairs, and A.V. apparently took their son and went out the back of the residence to avoid detection. Appellant’s conduct suggests that he was aware that he was in violation of the order for protection.
Appellant does not argue that the no-contact order was not necessary for the protection of A.V. and T.V. or that the district court’s determination to issue such an order was an abuse of discretion. In fact, there is no transcript of the order-for-protection hearing. Because appellant has not provided all of the evidence presented to the district court, we cannot conclude that the district court abused its discretion in determining that there was a need for the no-contact order or in finding that appellant violated the order.
In this case, we need not and do not reach the question whether Minn. Stat. § 518B.01 allows district courts to prohibit passive contact by the abuser when the victim initiates the encounter or whether the “no contact” language used in this order has that effect. We conclude only that Minn. Stat. § 518B.01 permitted the district court to order appellant to have no contact with the petitioner and that as so limited, the order does not violate due process standards.
second issue is whether appellant’s conviction is supported by sufficient
evidence. Appellant asserts that his
appeal “challenges the sufficiency of the evidence to support his conviction,”
but this argument is not well developed in his brief. In response, the state contends that
“[a]ppellant cannot challenge the sufficiency of the evidence on appeal after
entering a Lothenbach plea and
stipulating to the [s]tate’s case.” The
state cites State v. Busse,644 N.W.2d 79 (
Busse, the supreme court stated that
a defendant who avails herself of the Lothenbach
procedure may not challenge the sufficiency of the evidence on appeal. 644 N.W.2d at 88-89. “A defendant who wants to challenge the
state’s proof must proceed to trial instead of agreeing to a Lothenbach proceeding.” State
v. Mahr, 701 N.W.2d 286, 291 (Minn. App. 2005) (discussing Busse).
As this court observed, “the Lothenbach
procedure is intended merely to preserve pretrial issues when the facts are
Here, while documentation of appellant’s waiver and plea is not included in the district court record, according to the district court, “[appellant] waived his right to a jury trial and entered a Lothenbach plea.” The record indicates that appellant stipulated to the state’s case. Accordingly, the supreme court’s holding in Busse forecloses appellant’s challenge to the sufficiency of the evidence supporting his conviction. Busse, 644 N.W.2d at 88-89; Mahr, 701 N.W.2d at 291.
appellant’s sufficiency-of-the-evidence challenge is foreclosed by Busse, we will briefly address the
argument. We note that in considering
such a claim, our review is limited to determining whether the evidence, when
viewed in the light most favorable to the conviction, was sufficient to allow
the trier of fact to reach the decision that it did. State
v. Webb, 440 N.W.2d 426, 430 (
As previously recounted in this opinion, the record amply supports the conviction. Appellant had been with A.V. and T.V. for at least one and possibly four days. Appellant stalled the police when they arrived at his apartment, denied A.V.’s presence, and A.V. fled into the backyard with her son. Appellant’s conduct indicates that he recognized that
he was in violation of the order for protection. We conclude that appellant’s conviction is supported by sufficient evidence.
KLAPHAKE, Judge (concurring specially)
I concur in the result but write separately to address several areas of concern regarding the broadly drafted, boilerplate order for protection, which ordered appellant to have “no contact, either direct or indirect” with his wife. The trial court concluded that appellant violated the order when his wife came to his residence with their son, sought entrance, and claimed that she was going to have the order rescinded.
this case presents a potential constitutional argument that the statute
authorizing the order is void for vagueness, either facially or as applied to
the no-contact order does not expressly warn appellant that he would be in
violation if his wife voluntarily initiated contact with him at his separate
home. The order thus raises due process
concerns because it does not provide proper notice that appellant could be in
violation of the order merely by answering the door to his residence. See
the use of this order poses a potential procedural problem.
In summary, I believe that broad no-contact orders invite potential constitutional challenges, which, in an appropriate case, may be fatal. A trial court should exercise caution when drafting such orders, and reliance on boilerplate language in a commonly used form may be insufficient to withstand a constitutional challenge.
 Preprinted forms used by the district courts for orders for protection contain the no-contact language at issue in this case. See Form Emergency (Ex Parte) Order for Protection, Form 6-28 Order for Protection Following Hearing, Conference of Chief (District Court) Judges, November 1993. Widespread use of the form language no doubt occurs. Given the legal problems pointed out in the concurring opinion, use of the language is not risk-free.