This opinion will be unpublished and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
Jerry Allen Bratsch,
Filed August 7, 2007
Hennepin County District Court
File No. F05079037
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jon P. Erickson, William D.
Siegel, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza,
Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant argues that the evidence is insufficient to support his convictions of first-degree burglary and fleeing a peace officer in a motor vehicle. Because the record contains sufficient evidence for the jury reasonably to have found that appellant knew about the existence of and the terms of an order for protection (OFP) that deprived him of lawful possession of the home and that appellant fled a peace officer, we affirm.
Appellant Jerry Bratsch became separated
from his wife in February 2005, when she called police after Bratsch, who was
intoxicated, shot at a television set at their Corcoran home. Bratsch was taken to the hospital and then to
a detoxification center in
On March 3, Bratsch was voluntarily
committed for 28 days to the
Bratsch did not appear personally or
by counsel at the March 4 hearing; his wife appeared pro se. The district court issued an OFP that, inter
alia, excluded Bratsch from the home.
The court found that Bratsch had not appeared at the hearing because he
was in a “mental-health treatment facility” and that although Bratsch denied
the allegations in the petition, he agreed to the issuance of the OFP. The district court also found that Bratsch’s
address for service was the address of the
After 28 days at the treatment
center, Bratsch spent three and a half months at a halfway house in
On December 10, 2005, after having had “two bottles of beer” earlier in the evening, Bratsch went to the home at about 4 a.m. in order to remove the parties’ dog, which both parties claimed in the dissolution. He testified that he did not have a house key because it was taken away months earlier at the detoxification center and that he did not call his wife in advance because “[i]t was [his] house.” He entered the house by kicking in the front door. Bratsch then entered his wife’s bedroom and threatened her life.
Bratsch’s wife called the Corcoran
police, who arrived after Bratsch had left.
The deputy testified that the truck slowed down to turn onto County Road 50, on which it proceeded at about 50 or 60 miles per hour, wandered over the center line, veered toward the ditch, and finally stopped after having traveled a total distance of 3.4 miles since the deputy began to try to pull it over. Bratsch testified that he did not stop for the deputy more quickly because he was trying to make a call on his cell phone and did not hear the siren, and that he did not see the deputy’s emergency lights because his rearview mirror, which was old, was vibrating.
Bratsch was charged with one count each of first-degree burglary and fleeing a peace officer in a motor vehicle. A jury convicted him on both counts, and this appeal follows.
D E C I S I O N
On a claim that the evidence is
insufficient to support a conviction, this court carefully reviews the record
in the light most favorable to the conviction to determine whether a jury could
reasonably reach a guilty verdict based on the evidence and inferences
reasonably drawn from it. State v. Robinson, 604 N.W.2d 355,
A person commits first-degree
burglary if he enters a dwelling “without consent and with intent to commit a
crime, or enters a building without consent and commits a crime while in the
building” when a non-accomplice is present inside.
Bratsch first claims that his due-process rights were violated when the district court held a hearing on his wife’s application for an OFP without an effective waiver of his right to be present or represented by counsel and that he was not personally served with the OFP. Bratsch also argues that the evidence is insufficient to support his conviction of first-degree burglary. He argues that there is no direct evidence that he knew the terms of the OFP and that the circumstantial evidence is insufficient to prove that he knew those terms; therefore, he claims, there is insufficient evidence that he knew that he was excluded from the home.
We first note that Bratsch did not
directly appeal the issuance of the OFP.
See Rigwald v. Rigwald, 423
N.W.2d 701, 705 (
But we do consider Bratsch’s argument that the evidence was insufficient for the jury to have found that he had knowledge of the OFP and its terms when he entered the home. The jury was properly instructed that “[f]or an order for protection to deprive the Defendant of lawful possession, the Defendant must know of the existence of the order.” The record shows that on March 3, 2005, the day Bratsch was voluntarily committed, he signed a letter drafted by an advocate. The letter states:
I am unable to
attend tomorrow’s . . . hearing due to a stayed order for commitment which was
issued today. I deny the allegations in the petitioner’s request for an order for
protection but I agree to the issuance of an order for protection restraining
me from having contact with the petitioner. I will be at
(Emphasis in original.)
Bratsch admitted at trial that the signature on the letter was his and that he “guess[ed]” that he was not going to be able to be at the OFP hearing. He testified that he signed the letter “real quick” and that he “just kind of took . . . [the] advice” of his nurses, who “were taking care of” him and “thought it was . . . best” that he sign the letter. Bratsch argues that he did not draft the letter himself, that he was distraught, and that he did not understand what he was signing. But he does not deny that he signed the letter and does not allege lack of capacity.
Further, the record shows that
Bratsch was served personally with a copy of the temporary OFP, which notified
him that he was excluded from the home.
Although that order provided that it would expire on the date of the OFP
hearing, it also provided that it could be extended by the court if Bratsch failed
to appear. Bratsch testified that he was
“not sure” if he received a copy of the OFP by mail after the hearing. But the district court ordered Bratsch to be
served by mail at the treatment-center’s address, and we may assume that
district-court personnel followed the court’s instructions to serve the OFP by
mail. See Gallagher v. State, 286
The state maintains that the evidence
that Bratsch stayed away from the home for ten months, except for one visit to
pick up certain of his property, accompanied by his wife’s brother, suggests
that he knew the terms of the OFP.
Bratsch asserts that this evidence is consistent with an alternative
hypothesis, namely, that he simply did not wish to go back to the house during the
dissolution. But Bratsch’s forced entry
into the home at 4 a.m. is inconsistent with that hypothesis and suggests that
he was aware of the no-entry provision of the OFP. The evidence was sufficient for the jury
reasonably to reach a verdict of guilty on the charge of burglary.
Bratsch argues also that the
evidence is insufficient to convict him of fleeing a peace officer in a motor
vehicle, an offense that is committed when a person “by means of a motor
vehicle flees or attempts to flee a peace officer who is acting in the lawful
discharge of an official duty, and the perpetrator knows or should reasonably
know the same to be a peace officer.”
Bratsch contends that the evidence is insufficient to prove that he intended to elude the deputy sheriff. He argues that the record shows that he was not attempting to outrun the deputy because he did not extinguish his lights during the pursuit and did not take any evasive actions. Bratsch maintains that he was unaware that the officer was following him because he was distracted by his attempt to make a call on his cell phone. But the arresting deputy testified that, immediately after he activated his lights and siren, Bratsch accelerated, so that the deputy had to reach speeds of 85 to 90 miles per hour to catch up and that the deputy matched Bratsch’s speed at 75 miles per hour. Although Bratsch testified that he did not know how fast he was going, he admitted that he knew that the applicable speed limit was 55 miles per hour. Bratsch’s eventual stop, after he drove 3.4 miles from where the deputy first tried to stop him, does not negate the fact of his earlier high speed, which the jury could reasonably have determined showed an intent to evade the deputy. The record contains sufficient evidence for the jury reasonably to convict Bratsch of fleeing a peace officer in a motor vehicle.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.