Filed December 6, 2005

Reversed

Randall, Judge

Wright County District Court

File No. TX-04-4181

Michael Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas N. Kelly, Wright County Attorney, Lee R. Martie, Assistant County Attorney, 10 Second Street Northwest, Buffalo, MN 55313 (for respondent)

Glenn Bruder, Mitchell, Bruder, & Johnson, 4005 West 65th Street, Suite 200, Edina, MN 55435; and

Tristam O Hage, 919 Old Highway 8 N.W., Suite 100, New Brighton, MN 55112-2774 (for appellant)

Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

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

RANDALL, Judge

On appeal from conviction for violation of a harassment restraining order, appellant argues that (1) the direction in the preprinted form order, that appellant “stay away” from the house the victim rented from him, was vague and ambiguous and, as construed by the prosecution, violated his right to maintain his farm property that surrounded the house, (2) the prosecutor and the victim improperly interpreted the previous judicial order at trial, and interjected their understanding of its intended scope, and (3) the trial court abused its discretion in rejecting his proposed instruction requiring that appellant “knowingly” violated the order.

We conclude that the application of the restraining order, on these facts, was vague and ambiguous, and the state did not bear its burden of proof on the essential elements of the crime charged. There is not sufficient evidence to support the verdict. We reverse.

FACTS

In December 2002, K.D. met with appellant Peter Barberg and appellant’s sister to discuss the possibility of renting a house owned by appellant’s father Ralph Barberg. Because Barberg was an elderly man, he had previously delegated oversight of the rental arrangements to his children. After touring the home and discussing renting the residence, appellant escorted K.D. out to her car. According to K.D., appellant attempted to kiss her when she opened her car door to get into the vehicle.

K.D. objected to appellant’s behavior, and informed appellant’s family of her concerns. K.D. remained interested in renting the house, but found out appellant was to be responsible for any repairs in the home, and would be the initial contact-person if anything was wrong with the home. K.D. informed the family that she did not want to be put in a situation where she would be alone with appellant. To appease K.D., appellant’s family assured her that appellant would not be directly involved with the rental of the property, and that K.D. was to contact other members of the family if she had any concerns with the property.

Appellant and her five children began renting the house in January 2003. Despite the promise that appellant would not be involved in the maintenance of the property, appellant occasionally visited the premises to assist in the property’s upkeep. Because of ongoing problems with appellant, K.D. sought a harassment restraining order against appellant. Appellant objected to a two-year restraining order on the grounds that the house K.D. was renting was just a part of a 70-acre plus farmstead that had additional outbuildings and farmland that were not part of the rental agreement. Despite this unobjected to evidence, the district court issued a general restraining order on February 18, 2003, which simply said, in pertinent part, “[Appellant] shall stay away from where [K.D.] resides. 17755 25th St. SW, Cokato, MN 55321.”

In late 2003, appellant acquired the Barberg farmstead from his father, including the house being rented by K.D. Appellant subsequently sent K.D. a letter indicating that he was the landlord and that he was evicting K.D. from the premises. Shortly thereafter, appellant hired Barbara Demars to manage his properties. Appellant informed Demars of the restraining order, and Demars became the liaison between K.D. and appellant.

After receiving the eviction notice, K.D. contacted Demars and informed her that she was having difficulty finding a place to move, and requested more time to move out. Demars acquiesced to K.D.’s request, and permitted K.D. to stay in the house until the end of the school year, which was the beginning of June. In mid-April, K.D. contacted Demars to inform her that she had found a new piece of rental property and that she would be moving out at the end of the month. On April 29, K.D. contacted Demars again and asked to stay until May 3 because she had to clean the house. According to K.D., Demars gave her permission to stay until the 3rd of May.

Following her conversation with K.D., Demars called appellant and informed him that K.D. would be at the house “a couple days yet for cleaning.” A few days later, on May 1, 2004, appellant went to the farm with a backhoe to clear away brush and prepare to plant trees. According to appellant, when he arrived at the property, he noticed a moving van near the house. Appellant testified that he never saw K.D., and stated that he made sure he stayed on the very outside of the driveway and did not go near the garage. Appellant claimed that he unloaded his backhoe by a machinery-shed and drove to the orchard, completely avoiding the house.

Over appellant’s claim that he did not see K.D. at the house, K.D. testified that appellant was driving his tractor in circles in the yard next to the house, and that at some point, appellant made “eye-contact” with her. K.D. subsequently contacted law enforcement who arrived 15-20 minutes later. Appellant was later charged with the misdemeanor offense of violating a harassment order.

Following a two-day jury trial, appellant was found guilty of violating the February 18, 2003, harassment restraining order. Appellant was sentenced to 90-days in jail and fined $1,000; the district court stayed 70 days of the sentence and $500 of the fine. This appeal followed.

D E C I S I O N

Appellant argues that the February 18, 2003, harassment restraining order failed to clearly define the behavior it prohibited, and, therefore, it is unconstitutional to punish him for the asserted violation. This court reviews constitutional issues de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

The state initially contends that appellant’s “void for vagueness” argument is untimely because appellant did not appeal the validity of the restraining order within 60 days of the issuance of the order. We disagree. The state’s argument is premised on State v. Harrington, in which this court held that a party’s failure to appeal from the issuance of a restraining order precludes challenges to the validity of the order in a subsequent appeal. 504 N.W.2d 500, 503 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993). But unlike Harrington, this is a criminal case. The court in Harrington specifically noted that “[w]e express no opinion regarding appellant’s argument on the expanded scope of review in criminal contempt proceedings.” Id. at 502 n.1. Moreover, the 60-day time limit asserted by the state is a civil time limit. See Minn. R. Civ. App. P. 104.01. When the violation is criminal, such as it is here, a defendant cannot be precluded from raising a defense that he did not know at the time the order (possibly months or years ago) was issued. Appellant’s argument is not untimely. Our ultimate conclusion is that, as a matter of law, there is not sufficient evidence in the record to sustain a verdict of guilty based on the general restraining order. In any criminal case, a defendant can never be deprived of the right to plead “not guilty” and that plea, without more, puts the burden of proof on the state, by proof beyond a reasonable doubt, to prove every essential element of the crime charged. What appellant argues here is really nothing more than the argument of insufficient evidence to sustain the verdict. That argument can always be raised.

The state also contends that appellant waived his vagueness challenge by failing to object to the admissibility of the harassment restraining order at trial. We do not understand the state’s argument. Certainly, the harassment restraining order would be admissible at a trial on the charge of “violating it.” If the state could not get the previous harassment restraining order into evidence, you would not have had a trial! The fact that the harassment restraining order was in evidence does not prove that appellant violated it. That proof remains the burden of the state, which, as stated, we find wanting.

Appellant argues that he cannot be prosecuted for violating the restraining order because the order was vague and ambiguous. It is a well-established principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298 (1972). The enactment violates due process if “[persons] of common intelligence must necessarily guess at its meaning . . . .” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127 (1926).

As noted, the harassment order states only: “[Appellant] shall stay away from where [K.D.] resides. 17755 25^th St. SW, Cokato, MN 55321.” Appellant contends that the order is vague because the language “stay away” and “resides” does not give precise directions as to what distance was required to meet the order’s mandate, nor is there any definition given to the term “stay away” and “resides.” This is not a frivolous argument. Appellant owned a 70-acre farm with various outbuildings and crop land. It is undisputed that the rental agreement that K.D. had, meaning where “she resides,” did not include the entire 70 acres. This defendant was not really put on fair notice of what he could do and could not do in terms of tending to his outbuildings and his crops in those areas that K.D. agrees she did not rent. To properly manage a farm, it is essential that appellant have access to the farm’s outbuildings and the surrounding acreage. By not detailing how appellant was to avoid K.D., yet also effectively manage his farm, appellant was left to guess at the restraining orders prohibitions. See Connally, 269 U.S. at 391, 46 S. Ct. at 127. As to this 70-acre farm, the restraining order is vague, and without more proof than was offered at trial, unenforceable. The record shows that on May 1, 2004, when appellant arrived at the farm, he parked his truck near one of the outbuildings, and that he worked outside of K.D.’s driveway and was not near the house. The only contact in the record is her claim that he “looked at her” from an undefined distance. The state has the burden of proof on all essential elements. The state did not offer into evidence any drawings, measurements, or pictures of the farmstead depicting appellant’s location, and K.D.’s location when “the look” took place. It is impossible, from this record, to determine whether appellant “stayed away” from where K.D. “resided.”

To exacerbate the issue, the state used totally inappropriate and inadmissible evidence at trial. The record reflects that at trial the following exchange occurred between the prosecutor and the victim:

Q: [K.D.], what kind of restrictions or what kind of Restraining Order did you get that you were granted by the judge? In other words, what was [appellant] prevented from doing pursuant to that order?

A: When we were at the hearing and the judge was giving – he stated there is – he has granted a two-year Restraining Order to me, and [appellant] said, “No, you can’t do that,” and that he was – he should be able to go on – this farm has outbuildings, and there was additional land. He stated that he should be able to go to the out-buildings and the additional land, and the judge clarified it in this way: He stated, “You can’t set your big toe on the end of that driveway, and she can call because you have violated the Restraining Order.”

The prosecutor then referred to this statement during closing arguments by asserting:

So, the question, ladies and gentlemen, that you have to decide is when he went out there on May 1, 2004 did he violate the Order. The State’s position is that he violated the order, ladies and gentlemen, it’s pretty clear. Just the fact of him driving out there is enough. The judge made it very clear, told him don’t even step a big toe on that property. He knew that he was not supposed to go out there.

First, we note that this exchange at trial was unobjected-to by defendant’s counsel. This is a good time to point out that if the attorney for a criminal defendant sees something that the prosecution does as plainly wrong, and then fails to object, it is not conducive after a guilty verdict to come to an appellate court and claim that the error “is so plain and egregious” that even though unobjected to, the appellate court should still take notice of the issue. If the offending evidence was that plain, make an objection and get it in the record. Having said that, we find the erroneous evidence plain enough, that, in the administration of justice, we will consider it on appeal. We simply point out it should have been plain enough for a well-timed objection at trial.

When unobjected-to at trial, the admission of evidence may be reviewed by an appellate court if there is: (1) error; (2) that was plain; and (3) that affected substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). There is no question here that this testimony by K.D., and later relied upon by the prosecution in his closing argument, was totally inappropriate.

First, if either party to a trial wants a court to take judicial notice of something said on the record at a prior hearing, the parties should get a transcript, prove conclusively that something was said or done in a prior judicial proceeding, and then make an in camera motion to the trial judge, arguing why part of a prior proceeding is relevant and admissible. The trial judge can then look at the offer of proof and make its decision. None of that was done here.

Next, if the previous judge, the one who issued the restraining order, made extraneous or advisory comments about what might happen if a claimed violation was back in front of him, it would have been only that, advisory, and not generally admissible in a later trial. In a civil case, a judge’s opinion (based on the facts of the case and the law) about who should win and who should lose is appropriate. Whether it is a bench trial or a jury trial, the trial judge can direct a verdict for either side in a civil case. That is absolutely not true in a criminal case. The trial judge in a criminal trial can only direct a verdict of not guilty for the defendant. It cannot constitutionally in any way, shape, or form direct a verdict in a jury trial of guilty. The trial judge in a jury trial is forbidden from giving his opinion of guilty, even if the record would seem to support it. That is exclusively the province of the jury. In a criminal case, the judge can give his opinion of innocence, and take the case away from the jury, but only for not guilty, never for “guilty.”

If the first district court judge who issued the restraining order (we have no proof that what was claimed to be said was said) had talked about “not setting a big toe on the driveway,” that would not be determinative of what a later jury might decide. The relevant portion of that restraining order, meaning “stay away from where she resides,” is admissible, but the judge’s off-the cuff later remarks, if they were said, are not an integral part of the order and not admissible at a later trial as evidence of guilt.

The prosecutor’s closing argument defines the problem. At one point the prosecutor, paraphrasing that previous remark, said, “Just the fact of him driving out there is enough.” No, just the fact of appellant driving out to that portion of his farm which was not rented to K.D. “is not enough.” But that was the gist of the prosecutor’s closing statement. With the jury hearing the victim outlining what the judge who issued the restraining order supposedly said, the damage was done and the prejudice to appellant’s right to a fair trial was apparent.

Finally, appellant argues that the district court erred by refusing his request to insert the word “knowingly” into the jury instructions. Because we are reversing appellant’s conviction for violating the restraining order on the basis of insufficient evidence to support the verdict, we need not address appellant’s other arguments.

Reversed.