This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-95-1998

State of Minnesota,

Respondent,

vs.

George Eugene Madline,

Appellant.

Filed June 11, 1996

Reversed

Davies, Judge

Anoka County District Court

File No. K895716

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Paul T. Ostrow, Patrick J. Sweeney, Sweeney, Borer & Ostrow, 386 N. Wabasha St., Suite 1200, St. Paul, MN 55102 (for Respondent)

Paul D. Baertschi, Baertschi & Associates, 4640 IDS Center, 80 S. Eighth St., Minneapolis, MN 55402-2224 (for Appellant)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

This appeal is from a judgment of conviction for harassment, in violation of Minn. Stat. ' 609.749, subd. 2(7) (1994). Appellant George Madline was convicted based on stipulated facts after the trial court denied his motion to dismiss the complaint. He contends that the conduct described in the stipulated facts does not fit within the statutory definition of the offense. We agree and reverse.

FACTS

Appellant George Madline installed a hidden video camera in his bathroom and for approximately 15 months taped visitors using the facility. The state charged him with gross misdemeanor harassment and with lewd and lascivious conduct.

The trial court granted Madline's motion to dismiss the charge of lewd and lascivious conduct, but declined to dismiss the charge of harassment. The parties agreed to try that charge to the court on stipulated facts, consisting of the police reports, the complaint, and the statements of witnesses.

The complaint alleged that the taping was discovered when Madline's wife found a videotape made by the hidden camera, played it, and then searched for and discovered the camera. The victims of the surreptitious taping confirmed that they had been in the Madline home and used the bathroom there. They stated that after Mrs. Madline told them about the taping, they felt "[v]iolated," "[v]ery uncomfortable," and "shocked." Madline told police that he had quit taping several months earlier but had not removed the camera. He denied selling or otherwise disseminating the tape to other people.

D E C I S I O N

Madline argues that his videotaping does not fall within the statutory definition of "harassment." This is a question of statutory interpretation, which this court reviews de novo. State v. Zacher, 504 N.W.2d 468, 470 (Minn. 1993).

Penal statutes must be strictly construed against the imposition of criminal liability. State v. Soto, 378 N.W.2d 625, 627 (Minn. 1985).

The harassment statute definition provides:

Subd. 1. Definition. As used in this section, "harass" means to engage in intentional conduct in a manner that:

(1) would cause a reasonable person under the circumstances to feel oppressed, persecuted, or intimidated; and

(2) causes this reaction on the part of the victim.

Minn. Stat. ' 609.749, subd. 1 (1994). The statute continues, in relevant part:

Subd. 2. Harassment and stalking crimes. A person who harasses another by committing any of the following acts is guilty of a gross misdemeanor:

* * *

(7) engages in any other harassing conduct that interferes with another person or intrudes on the person's privacy or liberty.

Minn. Stat. ' 609.749, subd. 2(7) (1994).

Madline argues that his conduct, though concededly reprehensible, neither directly nor intentionally caused the videotaped persons to feel "oppressed, persecuted, or intimidated." He points out that there is no evidence that he communicated the fact of his videotaping to the victims, or ever intended to do so. Madline concedes his conduct caused the proscribed result, but only through the independent, unforeseeable acts of another person--his wife. He claims that his own conduct was a direct cause only of a loss of privacy--an unapprehended type of harm--which is not within the harassment statute.

The intent of the harassment statute is to criminalize conduct intended to strike at the victim's consciousness. See State v. Orsello, 529 N.W.2d 481, 484 (Minn. 1993) (for intentional conduct to become harassment, it must be done in manner that would cause reasonable person to feel oppressed, persecuted, or intimidated), review granted (Minn. June 14, 1995). The term "harassment" implies conduct that by itself encroaches on the consciousness of the victim. See, e.g., American Heritage Dictionary of the English Language, 822 (3d Ed. 1992) ("harass" means "[t]o irritate or torment persistently"). Such conduct is not present here.

The element of proximate cause is similarly lacking. The causation element in a criminal statute generally requires that the proscribed conduct be not only a cause in fact, but a "legal" or "proximate" cause of the proscribed result. 1 Wayne R. LaFave and Austin W. Scott Jr., Substantive Criminal Law ' 3.12(a), at 392 (1986). In Minnesota, it has been held that a defendant's act must be the proximate cause of, or a substantial causal factor in, the proscribed result. E.g., State v. Sutherlin, 396 N.W.2d 238, 240-41 (Minn. 1986) (in first-degree murder, premeditated act must be substantial causal factor in death); State v. Southern, 304 N.W.2d 329, 330 (Minn. 1981) (defendant's grossly negligent driving was substantial causal factor in victim's death); State v. Schaub, 231 Minn. 512, 517, 44 N.W.2d 61, 64 (1950) (culpably negligent act must be proximate cause of death in manslaughter prosecution).

Madline's conduct was not, however, a legal or proximate cause of the victims' reactions. Madline's conduct of surreptitiously videotaping the victims, therefore, does not fit within the statutory definition of harassment, strictly construed. [1] Because we conclude that Madline's conduct does not violate the statute, we need not address the statute's constitutionality.

Reversed.


Footnotes

[1] Perhaps in response to this case, the 1995 legislature made it a misdemeanor, under the "interference with privacy" category, to intentionally intrude upon another's privacy by surreptitiously using a device for, among other things, recording events in places where reasonable persons have an expectation of privacy and have exposed or are likely to expose their intimate parts. 1995 Minn. Laws ch. 226, ' 22 (codified at Minn. Stat. ' 609.746, subd. 1(d) (Supp. 1995)).