This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Timothy Scott Romans,


Filed September 30, 1997

Affirmed in part, reversed in part, and remanded

Norton, Judge

Hennepin County District Court

File No. 95-060066

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

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

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Willis, Judge.



Appellant alleges the trial court violated his statutory and constitutional right to representation by court-appointed counsel and challenges four convictions under the stalking statute by arguing that the trial court failed to instruct the jury on the element of specific intent. Appellant was not entitled to court-appointed counsel, but improper jury instructions require remand for a new trial on four of the stalking charges. We affirm in part, reverse in part, and remand.


Appellant Timothy Scott Romans was charged with six counts of stalking, in violation of Minn. Stat. § 609.749 (1996). Two counts were felonies and the remaining four were gross misdemeanors. In addition, appellant was charged with violation of a harassment restraining order, a misdemeanor in violation of Minn. Stat. § 609.748 (1996).

The charges arose out of a short relationship with the victim in January 1994. Appellant and the victim had two formal dates and a number of casual meetings, after which the victim broke off the relationship. Nevertheless, appellant admitted that he sent numerous cards and letters to the victim between February 1994 and September 1994. In addition, appellant called the victim repeatedly; an expert from the telephone company testified 53 calls were traceable from appellant to the victim. Evidence showed that, on one occasion, appellant repeatedly rammed the victim's car and, on a separate occasion, tried to run over the victim. Finally, in December 1995, appellant had a third person say hello to the victim from him. Most of appellant's contact with the victim was in violation of a restraining order that prohibited phone, mail, and third-person contact.

Appellant's actions adversely affected the victim. The victim was afraid to answer the phone or leave his house. To avoid appellant, the victim moved, transferred to a more secure work place, changed his phone number several times, stayed at friends' houses, and carried an alarm with him wherever he went. The victim testified the word "threatening" most adequately described the impact of appellant's activities. The victim filed a complaint, and the matter proceeded to trial.

Appellant fired private counsel after he was unable to negotiate an acceptable plea bargain. Three weeks before trial, the public defender determined appellant was ineligible for court-appointed counsel. At least one judge reviewed this determination and confirmed appellant was ineligible. They briefly mentioned standby counsel, but did not discuss it again after the court determined appellant was not eligible for a public defender. On the day of trial, the trial court found appellant ineligible because he testified that he immediately could have had a job that paid $3,000 to 4,500 a month. Appellant proceeded to trial pro se without standby counsel.

When instructing the jury on five of the stalking charges, the court gave instructions that required only general intent. The instruction on the remaining stalking charge required specific intent. The jury convicted appellant of both felonies, three gross misdemeanors, and the misdemeanor violation of the restraining order.


1. Right to counsel

Appellant argues reversal is required on all counts because the trial court failed to appoint counsel for him. We disagree. Minn. R. Crim. P. 5.02 provides that a defendant who is not represented by counsel and is financially unable to afford counsel shall be appointed a public defender. The standard of indigence to be applied by the trial court is whether a defendant can obtain counsel "without substantial hardship for the defendant or the defendant's family." Minn. R. Crim. P. 5.02, subd. 3. The trial court must make findings on the record regarding a defendant's ability to obtain representation without substantial hardship. State v. Ferris, 540 N.W.2d 891, 892 (Minn. App. 1995).

In the present case, appellant contends that the trial court failed to make an independent examination of whether he could obtain representation without substantial hardship. We disagree. On the day of trial, the trial court independently evaluated whether appellant was eligible for a public defender. As part of the financial evaluation, the court learned appellant had recently quit his job to make time for trial. Appellant's gross monthly income as an automobile salesman averaged between $3,000 and $4,500. Initially, appellant admitted "potential does exist" for him to get his job back. Upon further questioning, appellant testified he could obtain reemployment immediately. In considering appellant's debts, assets, and possible income, the trial court found appellant financially able to afford counsel without substantial hardship. Thus, the trial court's findings meet the standards set out in Ferris.

Appellant also contends the most reasonable option for the trial court would have been to appoint a public defender on the condition that appellant would reimburse the state to the extent he was able to do so, as authorized by Minn. R. Crim. P. 5.02, subd. 5. The comments to rule 5.02 provide that counsel can be appointed if a person would be subject to substantial financial hardship if forced to pay the full cost of adequate representation. Here, the trial court determined appellant was not subject to financial hardship. Further, this decision remains in the discretion of the trial court. Ferris, 540 N.W.2d at 895. Thus, while an option might have been to provide counsel and require reimbursement, the trial court did not abuse its discretion in deciding not to appoint counsel.

Next, appellant argues that, even if he were ineligible for a public defender, he was entitled to the assistance of standby counsel. We disagree. Appellant contends precedent and the purpose of standby counsel indicate standby counsel is available to every pro se individual. In support of his position, appellant cites State v. Lande, 376 N.W.2d 483 (Minn. App. 1985) (Foley, J. dissenting), review denied (Minn. Jan. 17, 1986), and State v. Richards, 552 N.W.2d 197 (Minn. 1996). Lande, 376 N.W.2d at 485-86, held appointment of standby counsel is required when an indigent defendant refuses counsel. This holding does not apply to appellant's situation. Unlike Lande, appellant is not indigent. Lande does not address appointment of standby counsel when a defendant is not indigent.

In Richards, 552 N.W.2d at 205, the Minnesota Supreme Court stated "standby counsel must be appointed for any defendant choosing to represent himself in a felony case. Minn. R. Crim. P. 5.02, subd. 1." Appellant interpreted this to mean any and all defendants. However, appellant has taken this quotation out of context. The defendant in Richards was appointed standby counsel because he was indigent. This was the reason for the supreme court's reference to rule 5.02, subdivision 1, which also requires a defendant to be unable to afford counsel. Richards did not require the trial court to appoint standby counsel for appellant. Id. at 207.

In addition, public policy dictates that it is not feasible for every pro se defendant, regardless of indigent status, to have standby counsel at public expense. Appellant's argument would mandate that, no matter what a defendant's financial situation, the defendant would be entitled to standby counsel at public expense if the defendant did not want to obtain private counsel. In sum, case law and public policy do not support appellant's contention that he was entitled to standby counsel.

2. Jury instructions

Appellant contends that five of the jury instructions regarding stalking were fatally defective because they failed to require specific intent.[1] Despite the fact that appellant did not object to the jury instructions at trial, he argues this case is reviewable because the instructions contained plain error. We agree. See State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (although failure to object generally forfeits right of appellate review, court makes exception if claim relates to error in "fundamental law" in jury instructions); State v. Loewen, 565 N.W.2d 714, 715-16 (Minn. App. 1997) (where jury instructions contained plain error in fundamental law, failure to object did not constitute waiver); see also Minn. R. Crim. P. 31.02 (plain errors or defects affecting substantial rights may be considered for first time on appeal).

The instructions the trial court gave the jury here required only general intent. After appellant was convicted and sentenced, the Minnesota Supreme Court determined that specific intent was an element of the stalking statute. State v. Orsello, 554 N.W.2d 70, 76 (Minn. 1996). Based on Orsello, appellant asserts a new trial is necessary. We agree. Jury instructions, viewed in their entirety, must fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). Because the instructions here did not "explain the law of the case," and in fact contained a fundamental error of law, a new trial is required.

In so holding, we reject respondent's claim that the Orsello decision should only be applied prospectively under the balancing test set forth in State v. Sims, 553 N.W.2d 58, 60 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). First, Orsello applies retroactively. Loewen, 565 N.W.2d at 716. Further, a balancing test was inapplicable because Orsello did not create a new rule, but simply confirmed that the stalking statute requires specific intent.[2] Id. In this situation,

[i]t is the law that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation -the overruled decision is regarded in law as never having been the law, but the law as given in the later case is regarded as having been the law, even at the date of the erroneous decision.

Id. (quoting Hoven v. McCarthy Bros. Co., 163 Minn. 339, 341-42, 204 N.W. 29, 30 (1925)); see also McGuire v. C & L Restaurant, Inc., 346 N.W.2d 605, 614 (Minn. 1984) (finding a statute is not law if it is found unconstitutional; "it is just as inoperative as had it never been enacted"). Thus, instructions on the element of specific intent were required at appellant's trial. Accordingly, the jury instructions contained a fundamental error of law that require a new trial.

Affirmed in part, reversed in part, and remanded.

[ ]1 Appellant challenged five convictions on the basis of improper jury instructions. Of these five, he was only convicted of four. Thus, this court is only reviewing jury instructions for four counts of stalking.

[ ]2 The Loewen decision goes on to discuss that even under the balancing test, Orsello would be applied retroactively. Since reversal is required, however, we need not discuss the balancing test further.