Jana Harvieux, Respondent, vs. Craig Doering, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1918

CX-02-2105

 

 

Jana Harvieux,

Respondent,

 

vs.

 

Craig Doering,

Appellant.

 

 

Filed June 17, 2003

Affirmed

Robert H. Schumacher, Judge

 

Dakota County District Court

File No. C30215206

LeSueur County District Court

File No. C602975

 

 

Craig Doering, P.O. Box 192, Rochester, MN 55903 (appellant pro se)

 

Jana Harvieux, 990 Kensington Trail, #201, Eagan, MN 55123 (respondent pro se)

 

 

            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

 

UNPUBLISHED OPINION

ROBERT H. SCHUMACHER, Judge

In the first case in this consolidated appeal, appellant Craig Doering argues that the district court erred by granting a harassment restraining order against him because (a) the district court's findings were inadequate to justify the restraining order, (b) his prior criminal conviction was given excessive weight in deciding whether to issue the restraining order, and (c) he was denied a full hearing when he was precluded from presenting witnesses and cross-examining respondent Jana Harvieux's witnesses.  In the second consolidated case, Doering argues that the district court improperly dismissed his petition for a restraining order against Harvieux, arguing that the court denied him a full hearing when it precluded him from presenting and cross-examining witnesses.  We affirm.

FACTS

Doering and Harvieux first met when Harvieux was a bartender, and Doering was a patron, at a tavern.  Over the past six years, Harvieux has made 20 to 30 police reports regarding Doering.  In March 1999, the Ramsey County District Court granted Harvieux's petition for a restraining order against Doering, who later made an Alford plea regarding violation of Minn. Stat. § 609.749, subd. 5 (1998) (pattern of harassing conduct).

In a Hennepin County District Court action in February 2001, Doering was convicted of felony harassment of Harvieux and her twin sister, and he was sentenced accordingly to an upward durational departure.  He appealed the conviction, and this court dismissed his appeal.  State v. Doering, No. C2-01-872 (Minn. App. Jan. 15, 2002).  Doering was released from prison on May 20, 2002, and he was given a nine-month supervised-release period.  As a condition of his release, Doering was subject to a no-contact order prohibiting him from having any contact with Harvieux or her twin sister.

Four months later, on September 11, 2002, Harvieux filed in Dakota County District Court a petition to obtain another harassment restraining order against Doering.  This petition is the subject of the first appeal.  At the hearing, Harvieux stated that after Doering was released from prison on May 31, she began to be subject to strange occurrences, including frequently seeing a particular car, receiving "many calls from pay phones," and receiving a suspicious letter on her car.  Doering subpoenaed two witnesses to testify at the hearing, but neither did so.  The district court granted the request of Richard Molitor, Doering's parole officer, to be excused because Doering had not paid the required witness fees.  The other witness, Cindy Luchsinger, sent a fax to the court stating that she did not appear at the hearing because her "lawyer * * * advised [her that] the subpoena [was] not valid" and because she was "very fearful" of Doering.

The Dakota County District Court granted Harvieux's petition and issued a two-year restraining order requiring Doering to stay away from Harvieux's home, her place of employment, and the Hamline University graduate school she attends.  The district court based its decision on the fact that Doering "was convicted of stalking [Harvieux] and sent to prison."  The two-year restraining order is effective through October 21, 2004.  Doering filed a notice of appeal for the Dakota County matter on November 1, 2002.

With regard to the second appeal, Doering alleges that Harvieux called him on the telephone to warn him not to appeal the Dakota County restraining order.  The next day, Doering filed in LeSueur County his own petition for a restraining order against Harvieux.  On November 7, the LeSueur County district court held a hearing regarding Doering's petition, and both he and Harvieux testified under oath.  The LeSueur County district court found that there was insufficient evidence to conclude that Harvieux had harassed Doering, and it dismissed Doering's petition. Doering appealed the LeSueur court's dismissal, and this court consolidated the two appeals.

D E C I S I O N

 1.        A district court may grant a restraining order if "the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment."  Minn. Stat. § 609.748, subd. 5(a)(3) (2002).  The statute defines "harassment" as

a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target[.]

 

Minn. Stat. § 609.748, subd. 1(a)(1) (2002).  The statute does not define "hearing," though case law has held that a proper hearing under Minn. Stat. § 609.748, subd. 5(a),

includes the right to examine witnesses and that witnesses must testify under oath if the order is to be given effect for longer than 14 days.

Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995).  An appellate court reviews the granting of harassment restraining orders under an abuse-of-discretion standard. Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn. App. 2002).  A district court's findings of fact shall not be set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.

Doering argues that the district court abused its discretion by prohibiting him from examining witnesses.  The record does not support this position.  The district court acted within its discretion when it granted Richard Molitor's request to be excused because of Doering's non-payment of witness fees.  See Phillippe v. Comm'r of Pub. Safety, 374 N.W.2d 293, 297 (Minn. App. 1985) (holding that district court's quashing of subpoenas was not abuse of discretion).  Similarly, the district court acted within its discretion by proceeding despite the absence of Luchsinger, who explained her nonattendance by stating that "her attorney said the subpoena was invalid" and that she was "afraid" of Doering.  Id.  This court has previously affirmed a district court's decision over an appellant's objections that he was not able to subpoena witnesses.  State v. Rau, 367 N.W.2d 613, 615-16 (Minn. App. 1985), review denied (Minn. July 26, 1985).

Doering next argues that his recent conviction alone is an insufficient incident "of intrusive or unwanted acts, words, or gestures" to justify the entry of a restraining order.  We disagree.  Evidence that Doering was recently convicted of stalking Harvieux and her twin sister satisfies the requirement that the court find reasonable grounds to believe that Doering has engaged in harassment.  See Minn. Stat. § 609.748, subd. 5(a)(3).  Doering's recent conviction required proof that he had engaged in intrusive or unwanted acts, words, or gestures against Harvieux.  The district court made it clear in both the hearing and the restraining order that its order was based solely on Doering's recent conviction of stalking Harvieux.  Consequently, the district court's findings of fact were sufficient to support the court's restraining order.

2.         Doering also appeals the denial of his petition for a restraining order against Harvieux, arguing that the court abused its discretion by depriving him of his right to present witnesses and by limiting his cross-examination of Harvieux.  Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence and testimony is within the district court's discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).

Doering argues that the court's deprived him of the right to present witnesses by denying his in forma pauperis request for the court to pay the witness fees.  The in forma pauperis statute provides as follows:

If the court finds that a witness * * * has evidence material and necessary to the case and is within the state of Minnesota, the court shall direct payment of the reasonable expenses incurred in subpoenaing the witness, if necessary, and in paying the fees and costs of the witness.

 

Minn. Stat. § 563.01, subd. 5 (2002) (emphasis added).  "The trial court has broad discretion in determining whether expenses should be paid" under this statute.  Thompson v. St. Mary's Hosp. of Duluth, 306 N.W.2d 560, 563 (Minn. 1981) (citation omitted).

Contrary to Doering's arguments, the district court correctly noted that it had already approved his petition to file in forma pauperis.  Consequently, Doering could have applied for the expenses in order to subpoena witnesses, but he did not do so.  Further, one of Doering's proposed witnesses, Molitor, was present in the courtroom during the hearing, but he did not remain long enough to testify.  Thus, Doering had the opportunity to call witnesses, but those witnesses were either unable or unwilling to testify.  The district court then acted within its wide discretion by proceeding without those witnesses.

Doering next contends that the district court's limitation of his cross-examination of Harvieux was an abuse of discretion.  But the record shows that the district court allowed Doering, who was acting pro se, to participate in extensive cross-examination of Harvieuxconsisting of over 14 pages in the transcript.  The district court properly limited Doering's questioning to relevant issues and acted within its discretion by preventing Doering from asking irrelevant questions or questions pertaining to criminal actions already adjudicated.

The district court did not abuse its discretion in determining whether to grant or deny the petitions for restraining orders.

Affirmed.