This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-97-1738

State of Minnesota,

Respondent,

vs.

Scott Mitchell Pederson,

Appellant.

Filed July 14, 1998

Affirmed

Willis, Judge

Steele County District Court

File No. KX96695

Hubert H. Humphrey III, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Douglas L. Ruth, Steele County Attorney, 317 N. Cedar, Box 616, Owatonna, MN 55060 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.

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

WILLIS, Judge

Appellant Scott Pederson challenges his conviction of violation of an order for protection under Minn. Stat. § 518B.01, subd. 14 (Supp. 1997), on the ground that the court erred in not instructing the jury that specific intent to violate the order is an element of the crime. Appellant also argues that if a showing of specific intent is not required to prove a violation, the statute is unconstitutional. We affirm.

FACTS

On May 17, 1996, appellant's wife, Teresa Pederson, obtained an order for protection preventing appellant from contacting her. The order provided that appellant was to "have no contact with [wife] * * * whether in person, with or through other persons, by telephone, letter, or in any other way." A court-appointed guardian ad litem helped appellant and wife arrange appellant's visitation with their children.

Appellant testified at trial that he called wife's house on the morning of August 11 to speak with their daughter, T.P. He claims that wife answered, told appellant that T.P. was sleeping, and told him to call back later. But wife claims that when appellant called, he became hostile, so she hung up the telephone. When appellant called back, no one answered, so he left a message on the answering machine. Appellant called the house three more times during the day and left the following messages:

SP: Teresa, pick up the phone and let me talk with [T.P.] please.

SP: Teresa, pick up the phone and let me talk to [T.P.] or I will be calling [the guardian ad litem] and let her know. I already talked to [her] and [she] says I can call here and talk to the kids.

SP: Teresa, you better let me talk to [T.P.] Things are just getting worse for ya. I know you're home. I just drove by.

On August 14, 1996, wife reported to the police that appellant violated the order for protection. Because of a prior conviction for the same offense, appellant was charged with gross misdemeanor violation of an order for protection, under Minn. Stat. § 518B.01, subd. 14(a) (1996). At trial, the court refused to instruct the jury that violation of an order for protection is a specific-intent crime. The jury found appellant guilty, and the court sentenced him to one year in jail with all but 10 days stayed, placed him on two years' probation, and ordered him to pay a $900 fine and to complete an anger management program. This appeal followed.

D E C I S I O N

I.

Appellant contends that the district court erred in refusing to instruct the jury that specific intent to violate the order is an essential element of the crime of violation of an order for protection under Minn. Stat. § 518B.01, subd. 14. A district court has broad discretion in determining jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). We will not reverse a district court's decision unless the instructions constitute an abuse of discretion. See Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (concluding that appellant failed to demonstrate that district court abused its discretion in instructing as it did rather than using proffered instructions). Further, where jury instructions fairly and correctly state the applicable law, we will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

The construction of a statute is a question of law, which this court reviews de novo. State v. Zacher, 504 N.W.2d 468, 470 (Minn. 1993). Under Minnesota law,

whenever an order for protection is granted pursuant to this section * * *, and the respondent or person to be restrained knows of the order, violation of the order for protection is a misdemeanor.[1]

Minn. Stat. § 518B.01, subd. 14(b). Appellant argues that because the statute requires that a person "know" of the order, a defendant cannot be guilty of violation of an order for protection "unless he knows what he is doing is wrong." Appellant contends that he did not know that calling wife was wrong because although the order prohibited him from calling wife's house to speak with her, he believed that he could call to speak with his children, and he had done so on a regular basis.

There are two types of criminal intent: general and specific. State v. Orsello, 544 N.W.2d 70, 72 (Minn. 1996). "[A] crime is a general-intent crime if the only intent required is to do the act which is prohibited by the statute." State v. Lindahl, 309 N.W.2d 763, 766 (Minn. 1981). A specific-intent crime requires that the defendant act with the intent to produce a specific result. State v. Charlton, 338 N.W.2d 26, 30 (Minn. 1983).

The act that Minn. Stat. § 518B.01, subd. 14, prohibits is violation of an order for protection by the person to be restrained, provided that person knows of the order. To prove the offense, the state is not required to show that a defendant acted with the intent to cause the specific result of violation of an order for protection; rather the state must show that a defendant intended to do an act that violated such an order. Here, it is undisputed that appellant knew the order for protection existed, that he knew that the order prohibited him from contacting his wife, and that he contacted her anyway. He therefore violated the order for protection and, consequently, section 518B.01, subdivision 14. We conclude that the district court did not err in refusing to instruct the jury that intent to produce a specific result is an essential element of the crime of violation of an order for protection.

II.

Appellant contends that if proof of specific intent is not required to establish a violation of Minn. Stat. § 518B.01, subd. 14, the statute is unconstitutional because it fails to give adequate notice of the conduct prohibited and "would punish a broad range of apparently innocent conduct." Although appellant does not define his challenge with any further precision, we interpret his argument to be that the statute is unconstitutionally vague. Minnesota statutes are presumed to be constitutional; courts exercise extreme caution in declaring a statute unconstitutional and do so only when absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). Because the constitutionality of a statute is a legal issue, we review it de novo. See, e.g., State v. Stallman, 519 N.W.2d 903, 906 (Minn. App. 1994). A statute that provides "the basis of a criminal prosecution[] must meet due process standards of definiteness under both the United States Constitution and the Minnesota Constitution." State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985). A person of common intelligence must not have to guess at the meaning of a statute or question its application. Id.

To be convicted of violation of an order for protection, a defendant must be shown to know of the order and to engage in conduct prohibited by the order. Minn. Stat. § 518B.01, subd. 14(b). The statute specifically provides that violation of an order is the prohibited conduct. See State v. Wilson, 524 N.W.2d 271, 273 (Minn. App. 1994) (penal statute must define criminal offense with "sufficient definiteness" so ordinary people can understand what conduct is prohibited) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983)). The order for protection itself gives notice of what conduct is prohibited. Application of the statute will not result in punishing a defendant for innocent conduct. We therefore conclude that the statute defining the offense of violation of an order for protection is not unconstitutionally vague.

Affirmed.

[1] If a person violates an order for protection during the time "between a previous conviction * * * and the end of the five years following discharge from sentence for that conviction," the person is guilty of a gross misdemeanor. Minn. Stat. § 518B.01, subd. 14(c) (Supp. 1997). Because appellant was previously convicted of violation of the order, he was charged with a gross misdemeanor.