This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-2029

 

State of Minnesota,
Respondent,

vs.

James Peltier,
Appellant.

 

 

Filed September 26, 2000

Affirmed
Foley, Judge^*

Anderson, Judge, concurring specially

 

Ramsey County District Court

File No. T49949551

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Clayton M. Robinson, Jr., St. Paul City Attorney, Jessica S. McConaughey, Assistant City Attorney, 15 West Kellogg Boulevard, Suite 500, St. Paul, MN  55102 (for respondent)

 

Paul W. Rogosheske, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue West, Suite 100, South St. Paul, MN  55075 (for appellant)

 

Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges his conviction for violating an order for protection, arguing that (1) the evidence was insufficient to support the conviction because there was no evidence to show proper venue, (2) the trial court abused its discretion in denying appellant’s request for an instruction that he knowingly violated a term of the order for protection, and (3) the court’s curative instructions in response to closing arguments were prejudicial.  We affirm.

FACTS

            Karin Flom was a waitress at Awada’s Restaurant on Plato Avenue in St. Paul at which appellant James Elias Peltier was a regular customer.  They became friends in September 1998 and dated off and on through June 1999.  Flom wished to end the relationship and testified that she did not want appellant to bother her anymore. 

            On June 17, 1999, Flom obtained an ex-parte temporary order for protection against appellant.  The order was issued in Ramsey County District Court and included the provision that appellant was “excluded from [Flom’s] place of employment at Awada[‘s] on Plato, 199 E. Plato Blvd., St. Paul, MN.”  After the order was signed, Flom reported for work.  When appellant arrived at Awada’s, Flom called the Ramsey County Sheriff’s Department and requested that appellant be served with the order.

            Deputy Dennis Healy served appellant with the order, told him that it prohibited him from being at Awada’s, and told him that he would have to leave.  Deputy Healy stated that as part of his general practice, in serving appellant the order he reiterated to him what the order said—that appellant would have to stay away from Flom’s residence and place of employment.  Deputy Healy did not recall if appellant asked if he could patronize Awada’s when Flom was not there.

            Appellant testified that Deputy Healy told him he was not to be in Awada’s when Flom was working and that if they were both there at the same time, appellant would have to leave.  Mike Jones, who was with appellant at Awada’s the night appellant was served with the order, testified that he overheard Deputy Healy make those statements to appellant.  Two other witnesses testified they were at Awada’s that night and that appellant told them the order did not prevent him from coming to Awada’s when Flom was not working.

            On June 22, Flom planned to stop by Awada’s to drop off some tip money and cash a check.  She called ahead and another server told her not to come by because appellant was there.  Flom drove to Awada’s and, after spotting appellant’s vehicle in the parking lot, called 911.  Two St. Paul police officers responded to the call.  Flom showed them the order for protection, and they entered and arrested appellant for violating the order.  One of the arresting officers testified that appellant said he believed the order only prevented him from patronizing Awada’s when Flom was working. 

            On June 23, appellant was charged with one count of misdemeanor violation of an order for protection.  Minn. Stat. § 518B.01, subd. 14 (1998).  The case went to trial on October 6, 1999.  A copy of the order for protection was entered into evidence.  After both sides rested, the court instructed the jury, stating the elements of the crime as follows:

            First, that there was an existing court order for protection; 

            Second, that defendant violated a term or condition of the order for protection.  And in this case that order which reads:  Respondent is excluded from the petitioner’s place of employment at Awada’s on Plato, 199 East Plato Boulevard, St. Paul, Minnesota;

            Third, that defendant knew of the order;

            Fourth, that defendant’s act took place on June 22, 1999 in Ramsey County.

 

After reading the instructions, the court asked for any additions or corrections from counsel.  Referring to a proposed modification of the standard instruction on the second element, defense counsel answered, “Only that suggested instruction that I filed earlier.” That proposed jury instruction—which the court refused—added “knowingly” to the second element, so that it read: “Second, defendant (knowingly) violated a term or condition of the order for protection.” 

            In closing, counsel argued that the state had to prove beyond a reasonable doubt that appellant “knew being at Awada’s at any time was illegal,” despite testimony that appellant “didn’t believe that was a term of the order.”  Counsel continued, stating, “[i]f you find that he thought being there when she wasn’t there was legal, then it’s over.”  He also stated that “the purpose of the order is to keep the two people apart,” that the order was “modified in [appellant’s] reasonable mind on what the deputy sheriff said,” and, again, that appellant was not guilty unless the state proved beyond a reasonable doubt that appellant knew that being at Awada’s at any time constituted a violation of the protective order.

            After defense counsel finished, the court excused the jury and addressed the attorneys, stating that defense counsel had “greatly misstated the law of the state of Minnesota.”  The court asked the prosecutor if she wanted to make a rebuttal pursuant to Minn. R. Crim. P. 26.03, subd. 11(j) or if she would like the court to make correcting instructions.  The prosecutor asked for curative instructions and, after the jury returned and over defense counsel’s objection, the court said that “in light of statements made by the attorneys,” it was going to reread instructions to the jury. 

            In rereading the elements of the offense to the jury, the court stated that the protective order “precluded [appellant] from being at Awada’s on Plato Boulevard.”  It also stated that “[s]tatements made by a process server to the defendant at the time of service are not a defense in the case.”  Finally, the court said that the intent of the domestic abuse act had been misstated, and it read from Minn. Stat. § 518B.01, subd. 6, noting in conclusion that the purpose of the domestic abuse act was not “merely to keep people away,” but that it was “a much broader and more encompassing act.”  The jury returned a guilty verdict, and appellant received a sentence of 90 days in jail and a $700 fine, stayed for one year.

D E C I S I O N

I.

            Where there is a challenge to the sufficiency of the evidence, appellate review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  A reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).   The court will not disturb the verdict if the jury,

acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.

 

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant argues that “there was absolutely no evidence submitted to the jury from which they could find * * * that the offense occurred in Ramsey County.”  This argument is without merit.

            In a criminal case venue is generally proved by direct evidence identifying the county in which the offense occurred. In the absence of specific evidence of the name of the county, the conviction may be sustained if the verdict is based on testimony from which the jury may reasonably infer proper venue. 

 

State v. Larsen 442 N.W.2d 840, 841 (Minn. App. 1989).

            Here, it is undisputed that the site of the offense was Awada’s on Plato Avenue in St. Paul.  The record contains evidence showing the order for protection was issued in Ramsey County and that a Ramsey County Sheriff’s Deputy served it on appellant while at Awada’s on Plato.  While there was no specific testimony placing Awada’s on Plato in Ramsey County, there was ample evidence for the jury to reasonably infer proper venue.

II.

            The refusal to give a requested jury instruction lies within the discretion of the trial court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  Trial courts are allowed “considerable latitude” in the selection of 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) (quotation omitted)).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  “A trial court is not obligated to submit a jury instruction which misstates the law.”  State v. Evans, 347 N.W.2d 813, 817 (Minn. App. 1984) (citing State v. Turnipseed, 297 N.W.2d 308 (Minn. 1980)), review denied (Minn. July 26, 1984).

            Appellant argues that because he presented evidence that he did not believe he was violating the order, the court abused its discretion by failing to read to the jury his proposed instruction that included “knowingly” in the second element of the offense.  State v. Wiltse, 386 N.W.2d 315 (Minn. App. 1986), review denied (Minn. June 30, 1986).

            In Wiltse, a defendant charged with violating a protective order sought to introduce evidence explaining why he went to the victim’s residence in violation of the order.  Id. at 317.  The defendant argued that violation of a protective order was a specific-intent crime and, in the alternative, that preventing him from explaining his presence at the scene violated his right to a fair trial.  Id.  This court found reversible error on the fair trial issue and explicitly declined to decide whether violation of a protective order was a specific-intent crime.  Id. at 318.  Therefore, appellant’s reliance on Wiltse is misplaced.  If there is to be a change in what constitutes a violation of an order for protection, it will be made by the supreme court or the legislature, not by this court.  See Terault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (extending existing law rests with supreme court or legislature, not court of appeals), review denied (Minn. Dec. 18, 1987).  Because appellant’s proposed jury instruction misstated the law, the district court did not err by refusing the instruction.

III.

            Citing a supreme court case, appellant argues that, after closing arguments, the trial judge made prejudicial remarks warranting reversal of his conviction.  State v. Shetsky, 229 Minn. 559, 569, 40 N.W.2d 337, 339 (1949) (criminal defendant entitled to trial without prejudicial remarks from judge as element of due process). 

            Appellant argues the court made prejudicial statements in giving corrective instructions to the jury by (1) paraphrasing the term of the order prohibiting appellant from being at Awada’s on Plato, (2) stating that “[s]tatements of a process server to the defendant at the time of service are not a defense in the case,” and (3) explaining the purpose of the domestic abuse act.

            The first statement summarized the relevant provision of the order in concise, neutral terms.  The jury was provided with a copy of the order itself, which, in plain language, prohibited appellant from going to Awada’s on Plato.  This statement was not prejudicial. 

            The second statement was an accurate statement of the law.  The court had already refused appellant’s requested instruction that would have made violation of an order for protection a specific-intent crime.  But appellant’s counsel argued as if the instruction had been granted.  Therefore, the court properly corrected counsel’s error.

            The third statement was simply a reading from the statute appellant was charged with violating.  Our review of the record convinces us that it had no prejudicial impact on appellant.

            Affirmed.

 

ANDERSON, Judge (concurring specially)

            I concur with the result.