This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1131

 

State of Minnesota,

Respondent,

 

vs.

 

Jerry Allen Bratsch,

Appellant.

 

Filed August 7, 2007

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. F05079037

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Mike Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

Jon P. Erickson, William D. Siegel, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Parker, Judge.*

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

WILLIS, Judge

Appellant argues that the evidence is insufficient to support his convictions of first-degree burglary and fleeing a peace officer in a motor vehicle.  Because the record contains sufficient evidence for the jury reasonably to have found that appellant knew about the existence of and the terms of an order for protection (OFP) that deprived him of lawful possession of the home and that appellant fled a peace officer, we affirm. 

FACTS

           

            Appellant Jerry Bratsch became separated from his wife in February 2005, when she called police after Bratsch, who was intoxicated, shot at a television set at their Corcoran home.  Bratsch was taken to the hospital and then to a detoxification center in Plymouth.  At the center, Bratsch was served personally with a copy of an ex parte temporary order for protection (OFP) obtained by his wife.  The OFP excluded Bratsch from the home, notified him of a March 4 domestic-abuse hearing date, and notified him that the order was effective until March 4 and that it could be extended by the court if he failed to appear at the hearing. 

            On March 3, Bratsch was voluntarily committed for 28 days to the Burkwood Treatment Center in Hudson, Wisconsin.  The same day, an advocate at the detoxification center drafted a letter for Bratsch’s signature.  The letter stated that (1) Bratsch was unable to attend the OFP hearing scheduled for March 4; (2) he denied the allegations in his wife’s request for an OFP but  “agree[d] to the issuance” of an OFP restraining him from having contact with his wife; and (3) he requested that the court mail to him a copy of the OFP at the treatment center.    

            Bratsch did not appear personally or by counsel at the March 4 hearing; his wife appeared pro se.  The district court issued an OFP that, inter alia, excluded Bratsch from the home.  The court found that Bratsch had not appeared at the hearing because he was in a “mental-health treatment facility” and that although Bratsch denied the allegations in the petition, he agreed to the issuance of the OFP.  The district court also found that Bratsch’s address for service was the address of the Burkwood Treatment Center and directed that the court administrator serve a copy of the order on Bratsch by mail at that address.  Bratsch later testified that he believed he was able to receive mail at the treatment center but that he was “not sure” whether he received the OFP in the mail.  He testified that, in any event, he did not know the terms of the OFP.

            After 28 days at the treatment center, Bratsch spent three and a half months at a halfway house in Mankato, where his wife had him served with a dissolution petition.  He then went to live with his mother in Redwood Falls.  Bratsch went to the Corcoran home on one occasion, accompanied by his wife’s brother, to pick up his truck and tools.

            On December 10, 2005, after having had “two bottles of beer” earlier in the evening, Bratsch went to the home at about 4 a.m. in order to remove the parties’ dog, which both parties claimed in the dissolution.  He testified that he did not have a house key because it was taken away months earlier at the detoxification center and that he did not call his wife in advance because “[i]t was [his] house.”  He entered the house by kicking in the front door.  Bratsch then entered his wife’s bedroom and threatened her life.  

            Bratsch’s wife called the Corcoran police, who arrived after Bratsch had left.  A Hennepin County deputy sheriff on patrol, who was also dispatched to the incident, testified that on his way to the scene, he saw a vehicle fitting the description of Bratsch’s truck pull into traffic on County Road 19.  He confirmed that the truck belonged to Bratsch by running a check on its license plate. The deputy testified that when he pulled behind the truck, activating his emergency lights and siren, the truck “just took off” at a speed of about 75 miles per hour.

            The deputy testified that the truck slowed down to turn onto County Road 50, on which it proceeded at about 50 or 60 miles per hour, wandered over the center line, veered toward the ditch, and finally stopped after having traveled a total distance of 3.4 miles since the deputy began to try to pull it over.  Bratsch testified that he did not stop for the deputy more quickly because he was trying to make a call on his cell phone and did not hear the siren, and that he did not see the deputy’s emergency lights because his rearview mirror, which was old, was vibrating. 

            Bratsch was charged with one count each of first-degree burglary and fleeing a peace officer in a motor vehicle.  A jury convicted him on both counts, and this appeal follows.

D E C I S I O N

I.

            On a claim that the evidence is insufficient to support a conviction, this court carefully reviews the record in the light most favorable to the conviction to determine whether a jury could reasonably reach a guilty verdict based on the evidence and inferences reasonably drawn from it.  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000).  Recognizing that the jury is in the best position to evaluate witness credibility, this court assumes that the jury believed testimony supporting the conviction and disbelieved evidence to the contrary.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001).  Circumstantial evidence is given the same weight as other kinds of evidence.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  But to sustain a conviction based entirely on circumstantial evidence, the evidence as a whole must be consistent only with the defendant’s guilt and inconsistent with any rational hypothesis other than guilt.  Robinson, 604 N.W.2d at 366.

            A person commits first-degree burglary if he enters a dwelling “without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building” when a non-accomplice is present inside.  Minn. Stat. § 609.582, subd. 1(a) (2004).  Bratsch was charged with entering the Corcoran home without consent when his wife was present and committing the crime of terroristic threats.  Entering a building without consent means entering without the consent of “the person in lawful possession.”  Minn. Stat. § 609.581, subd. 4(a) (2004) (emphasis added).  Violation of the no-entry provision of an OFP satisfies the illegal-entry element of burglary, and to prove a violation of such a provision, the state must show that the defendant knew that a valid OFP existed and knew its terms.  See State v. Colvin, 645 N.W.2d 449, 454 n.1 (Minn. 2002).

            Bratsch first claims that his due-process rights were violated when the district court held a hearing on his wife’s application for an OFP without an effective waiver of his right to be present or represented by counsel and that he was not personally served with the OFP.  Bratsch also argues that the evidence is insufficient to support his conviction of first-degree burglary.  He argues that there is no direct evidence that he knew the terms of the OFP and that the circumstantial evidence is insufficient to prove that he knew those terms; therefore, he claims, there is insufficient evidence that he knew that he was excluded from the home.

            We first note that Bratsch did not directly appeal the issuance of the OFP.  See Rigwald v. Rigwald, 423 N.W.2d 701, 705 (Minn. App. 1988) (an order for protection is appealable as a final order in a special proceeding).  Absent a jurisdictional defect, failure to appeal a court order precludes a collateral attack on that order in a subsequent prosecution.  See State v. Cook,  275 Minn. 571, 572, 148 N.W.2d 368, 369-70 (1967).  Because Bratsch did not directly appeal the issuance of the OFP, he may not raise a due-process challenge to the OFP in this subsequent prosecution.  See, e.g., State v. Harrington, 504 N.W.2d 500, 502-03 (Minn. App. 1993) (holding that defendant protesters who did not appeal from issuance of a restraining order were precluded from raising issue of constitutionality of restraining order in later prosecution for violating order), review denied (Minn. Sept. 30, 1993).  And failure to effect personal service of the OFP is not a jurisdictional defect because enforcement of the OFP requires knowledge, rather than service, of the order.  See Minn. Stat. § 518B.01, subd. 14(b) (2004) (stating that violation of an OFP is a misdemeanor if the “person to be restrained knows of the existence of the order”); id., subd. 14 (stating that for purpose of taking a person into custody who is alleged to have violated an OFP, “[t]he probable cause required . . . includes probable cause that the person knows of the existence of the order”).  Therefore, to the extent that Bratsch attempts to challenge the validity of the OFP, his challenge is an impermissible collateral attack.

            But we do consider Bratsch’s argument that the evidence was insufficient for the jury to have found that he had knowledge of the OFP and its terms when he entered the home.  The jury was properly instructed that “[f]or an order for protection to deprive the Defendant of lawful possession, the Defendant must know of the existence of the order.”  The record shows that on March 3, 2005, the day Bratsch was voluntarily committed, he signed a letter drafted by an advocate.  The letter states:

I am unable to attend tomorrow’s . . . hearing due to a stayed order for commitment which was issued today.  I deny the allegations in the petitioner’s request for an order for protection but I agree to the issuance of an order for protection restraining me from having contact with the petitioner.  I will be at Burkwood Treatment Center in Hudson Wi as of 3-4-05.  Please mail a copy of the order to me.

 

(Emphasis in original.)   

            Bratsch admitted at trial that the signature on the letter was his and that he “guess[ed]” that he was not going to be able to be at the OFP hearing.  He testified that he signed the letter “real quick” and that he “just kind of took . . . [the] advice” of his nurses, who “were taking care of” him and “thought it was . . . best” that he sign the letter.   Bratsch argues that he did not draft the letter himself, that he was distraught, and that he did not understand what he was signing.  But he does not deny that he signed the letter and does not allege lack of capacity.   

            Further, the record shows that Bratsch was served personally with a copy of the temporary OFP, which notified him that he was excluded from the home.  Although that order provided that it would expire on the date of the OFP hearing, it also provided that it could be extended by the court if Bratsch failed to appear.  Bratsch testified that he was “not sure” if he received a copy of the OFP by mail after the hearing.  But the district court ordered Bratsch to be served by mail at the treatment-center’s address, and we may assume that district-court personnel followed the court’s instructions to serve the OFP by mail.  See Gallagher v. State, 286 Minn. 335, 342, 176 N.W.2d 618, 622 (1976) (stating that on appeal, regularity in court proceedings is presumed).  Thus, the jury reasonably could have concluded that Bratsch was aware of the existence of the OFP and was aware that he was restrained from entering the home. 

            The state maintains that the evidence that Bratsch stayed away from the home for ten months, except for one visit to pick up certain of his property, accompanied by his wife’s brother, suggests that he knew the terms of the OFP.  Bratsch asserts that this evidence is consistent with an alternative hypothesis, namely, that he simply did not wish to go back to the house during the dissolution.  But Bratsch’s forced entry into the home at 4 a.m. is inconsistent with that hypothesis and suggests that he was aware of the no-entry provision of the OFP.  The evidence was sufficient for the jury reasonably to reach a verdict of guilty on the charge of burglary.  See State v. Doppler,590 N.W.2d 627, 635 (Minn. 1999) (stating that determining witness credibility is exclusive province of the jury). 

II.

            Bratsch argues also that the evidence is insufficient to convict him of fleeing a peace officer in a motor vehicle, an offense that is committed when a person “by means of a motor vehicle flees or attempts to flee a peace officer who is acting in the lawful discharge of an official duty, and the perpetrator knows or should reasonably know the same to be a peace officer.”  Minn. Stat. § 609.487, subd. 3 (2004).  To “flee” means “to increase speed, extinguish motor vehicle headlights or taillights, or . . . use other means with intent to attempt to elude a peace officer following a signal given by any peace officer to the driver.”  Id., subd. 1.  “With intent to” requires that “the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4) (2004).  

            Bratsch contends that the evidence is insufficient to prove that he intended to  elude the deputy sheriff.  He argues that the record shows that he was not attempting to outrun the deputy because he did not extinguish his lights during the pursuit and did not take any evasive actions.  Bratsch maintains that he was unaware that the officer was following him because he was distracted by his attempt to make a call on his cell phone.  But the arresting deputy testified that, immediately after he activated his lights and siren, Bratsch accelerated, so that the deputy had to reach speeds of 85 to 90  miles per hour to catch up and that the deputy matched Bratsch’s speed at 75 miles per hour.  Although Bratsch testified that he did not know how fast he was going, he admitted that he knew that the applicable speed limit was 55 miles per hour.  Bratsch’s eventual stop, after he drove 3.4 miles from where the deputy first tried to stop him, does not negate the fact of his earlier high speed, which the jury could reasonably have determined showed an intent to evade the deputy.  The record contains sufficient evidence for the jury reasonably to convict  Bratsch of fleeing a peace officer in a motor vehicle.

            Affirmed.