This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Mark Matthew Davis,


Filed May 20, 1997

Affirmed in part, reversed in part, and remanded

Mulally, Judge


Washington County District Court

File No. K3-95-6097

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

Richard M. Arney, Washington County Attorney, John W. Fristik, Assistant County Attorney, Washington County Government Center, 14900 61st Street North, P.O. Box 6, Stillwater, MN 55082 (for Respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mulally, Judge.



Appellant challenges his conviction under the stalking statute by arguing that the trial court failed to instruct the jury on the element of specific intent. Appellant's conviction of harassment and stalking is affirmed; improper jury instructions require remand for a new trial on the charge of a pattern of harassing conduct. We affirm in part, reverse in part, and remand.


Appellant Mark Matthew Davis admits that on three occasions in December 1995, he made obscene telephone calls to the program director for the sexual offender treatment program at the Stillwater Correctional Facility. Appellant was charged with a pattern of harassing conduct and harassment and stalking in violation of Minn. Stat. § 609.749, subds. 1, 2(4), 5 (1996) (the stalking statute). A jury found appellant guilty of the charged offenses as well as the lesser-included offense of making obscene phone calls. The trial court sentenced appellant to an executed prison term of 57 months, the guidelines sentence for a Level V offense by an offender with a criminal history score of nine.


Appellant challenges the jury instructions given for a pattern of harassing conduct and harassment and stalking. The trial court has "considerable latitude" when selecting the language for the jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)), cert. denied, 498 U.S. 1030 (1991). When construing the charge to the jury, this court must review the instructions in their entirety to determine if they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).

Appellant contends the instruction on the pattern of harassing conduct offense lacks the requisite element of specific intent. We agree. The stalking statute defines the term "harass" as engaging

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 (1996). The Minnesota Supreme Court has recently held that the stalking statute requires specific intent. See State v. Orsello, 554 N.W.2d 70, 76 (Minn. 1996) (interpreting definitions of harassment and stalking crimes). Specific intent "requires that the defendant acted with the intention to produce a specific result." Id. at 72.

Appellant has been convicted of the felony offense of a pattern of harassing conduct, which occurs when a person engages in a pattern of conduct toward a specific victim in a manner that would cause, and does cause, a reasonable person to feel terrorized or fear bodily harm. Minn. Stat. § 609.749, subd. 5(a). A pattern of harassing conduct is defined as multiple violations of Minn. Stat. § 609.79 (1996), which prohibits obscene or harassing telephone calls. Minn. Stat. § 609.749, subd. 5(b)(8). Section 609.79, subdivision 1, makes it a misdemeanor to make repeated phone calls "whether or not conversation ensues, with intent to abuse, disturb, or cause distress." (Emphasis added.) The pattern of harassing conduct thus requires proof of specific intent because the statute it incorporates, section 609.79, requires specific intent on the part of the offender. See Orsello, 554 N.W.2d at 75 (determining that similarity in language of statutes that define crime of obscene phone calls and crime of stalking or harassing via obscene phone calls evinces legislative intent to make statutes consistent and to require specific intent under both criminal statutes).

In instructing the jury here, the trial court gave the standard instruction for the pattern of harassing conduct pursuant to 10A Minnesota Practice, CRIMJIG 24.58 and 24.59 (Supp. 1996). That instruction does not contain an element of specific intent. Id. The court then omitted the intent element from the instruction on obscene or harassing phone calls. See 10 Minnesota Practice, CRIMJIG 13.55, 13.56 (1990) (setting forth elements of offense, including "defendant intended to annoy, abuse, threaten or harass a person at the called number"). This omission led the jury to decide the case without considering the requisite element of whether appellant had the specific intent to harass the victim. The trial court has an obligation to explain to the jury all the elements of an offense. State v. Thurston, 299 Minn. 30, 35, 216 N.W.2d 267, 270 (1974). Despite appellant's failure to object to this deficiency at trial, we consider the lack of a specific intent instruction to be fundamental and reversible error that prejudiced appellant at trial. See State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994) (when party fails to object to instruction, issue is reviewable only if alleged error is fundamental and prejudicial to defendant). This error requires reversal of appellant's conviction of a pattern of harassing conduct and remand for a new trial.

With regard to the other charged offense of harassment and stalking, pursuant to Minn. Stat. § 609.749, subds. 1, 2(4), the jury instructions included the element of specific intent, were based on 10A Minnesota Practice, CRIMJIG 24.56 and 24.57 (Supp. 1996), and fairly and adequately explained the law. See Flores, 418 N.W.2d at 155 (accepting jury instructions when, as a whole, they contain fair statement of law). Appellant's conviction of harassment and stalking must stand.

Affirmed in part, reversed in part, and remanded.

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