State of Minnesota, Respondent, vs. Daniel Stuart McMurlyn, Appellant.

State of Minnesota, Respondent, vs. Daniel Stuart McMurlyn, Appellant. A06-1027, Court of Appeals Unpublished, August 21, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1027

 

State of Minnesota,

Respondent,

 

vs.

 

Daniel Stuart McMurlyn,

Appellant.

 

Filed August 21, 2007

Affirmed

Kalitowski, Judge

 

Nicollet County District Court

File No. 52-CR-05-257

 

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134;

 

Michael K. Riley, Nicollet County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082; and

 

Jason L. Moran, Assistant Nicollet Special Prosecution Attorney, 65 South Park Avenue, P.O. Box 156, Le Center, MN 56057 (for respondent)

 

John M. Stuart, State Public Defender, Paul J. Maravigli, Davi Axelson, Assistant Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Muehlberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            On appeal from conviction of felony harassment (pattern of harassing conduct), appellant Daniel McMurlyn argues that evidence that he made a number of telephone calls to his estranged wife and to his daughter, despite an order for protection barring contact, was insufficient to support the conviction because the content and circumstances of the calls did not establish harassment that was intended or likely to cause fear.  Appellant also argues that the district court committed plain error in failing to instruct the jury on the element of intent.  We affirm.

D E C I S I O N

I.

            In considering a claim of insufficient evidence, this court's 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," is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Under Minn. Stat. § 609.749, subd. 5(a) (2004), it is a crime to

engage[ ] in a pattern of harassing conduct with respect to a single victim or one or more members of a single household which the actor knows or has reason to know would cause the victim under the circumstances to feel terrorized or to fear bodily harm and which does cause this reaction on the part of the victim.

 

A "pattern of harassing conduct" means two or more acts within a five-year period that violate the provisions that prohibit certain designated offenses listed in the statute.  Id., subd. 5(b) (2004).  "A conviction of pattern of harassment requires proof beyond a reasonable doubt of all elements of the pattern harassment statute, including that defendant acted within the elements of the underlying offenses."  State v. Richardson, 633 N.W.2d 879, 887 (Minn. App. 2001).  Thus, in order to satisfy the elements of a pattern-of-harassing-conduct offense, the state must prove that appellant (1) committed two or more of the predicate offenses within a five-year period; (2) knew that his conduct would cause his ex-wife to feel terrorized; and (3) by his conduct, caused his ex-wife to feel terrorized or fear bodily harm.  See 10 Minnesota Practice, CRIMJIG 13.58 (Supp. 2002); Richardson, 633 N.W.2d at 887.

            Appellant argues that the evidence was insufficient to sustain his conviction of engaging in a pattern of harassing conduct under Minn. Stat. § 609.749, subd. 5.  Although appellant concedes that his series of phone calls made his ex-wife feel "angry, upset, and scared," he argues that the elements of pattern of harassing conduct were not proven beyond a reasonable doubt because his ex-wife did "not fear harm or violence."  We disagree.

            The statute does not require that the victim fear harm or violence.  See Minn. Stat. § 609.749, subd. 5(a).  Rather, the statute requires that the actor exhibit conduct that "the actor knows or has reason to know would cause the victim under the circumstances to feel terrorized or to fear bodily harm and which does cause this reaction on the part of the victim . . . ."  Id. (emphasis added). 

            "Terrorize means to cause extreme fear by use of violence or threats."  State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988).  Here, the record reflects that since appellant and his ex-wife, V.E., divorced in 1999, their relationship was marred by "constant friction and harassment."  The record also reflects that in 2005, V.E. obtained an order for protection (OFP) against appellant.  Moreover, V.E. specifically testified that she felt "scared" as a result of appellant's phone calls.  V.E. testified that she felt scared because

[appellant] won't leave me alone.  He won't leave [our daughter] alone, and it continues over and over.  We don't have a life.  We don't - - [our daughter] doesn't have a life.

 

            . . . .

 

            I mean, I live my life every day worrying what this is doing to this little girl who has - - she's having trouble in school. 

 

V.E. further testified that appellant "alludes to threats" and later clarified this testimony by stating:

[Appellant] is a person that - - he tells people what is going to be done, and he's very, for lack of other words, belligerent, and it's not angry, it's a stronger word than angry.  And this is what's going to be done and if it's not followed through in a way that he wants it followed through then there are going to be ramifications. 

 

Finally, V.E. testified specifically that she felt "terrorized" by appellant's actions.  If believed, this testimony is sufficient to establish that appellant caused V.E. to feel "terrorized" by his repeated phone calls.  See Moore, 438 N.W.2d at 108 (stating that the reviewing court must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary).

            Appellant argues that his conviction of engaging in a pattern of harassing conduct should be reversed because the evidence did not establish that he intended to terrorize or cause fear of bodily harm.  But Minn. Stat. § 609.749, subd. 5, does not require specific intent.  State v. Mullen, 577 N.W.2d 505, 510 (Minn. 1998) (stating that section 609.749, subdivision 5, requires only general intent).  In fact, the statute does not specify that the actor must have "intended" to terrorize or cause fear of bodily harm.  See Minn. Stat. § 609.749, subd. 5.  Rather, the statute simply requires the actor to "know[] or ha[ve] reason to know" that his conduct would terrorize or cause fear of bodily harm.  Id.; see In re Welfare of C.R.M., 611 N.W.2d 802, 808 n.10 (Minn. 2000) (stating that"[g]eneral intent requires only that the defendant engaged intentionally in specific, prohibited conduct . . . .  In contrast, specific intent requires that the defendant acted with the intention to produce a specific result, such as is the case in premeditated murder."). 

            Here, as noted above, V.E. obtained an OFP against appellant in 2005 that was still in effect at the time appellant contacted V.E.  The OFP specifically prohibited appellant from having any contact with V.E. and her child in person or by telephone.  Appellant was aware or should have been aware of the contents of the OFP.  Moreover, on June 16, 2005, the date of the first alleged inappropriate conduct appellant had with the victims, V.E. reminded appellant that he was violating the OFP and told him "[d]on't do it again."  Despite the fact that V.E. reminded appellant of the OFP, the circumstantial evidence presented at trial demonstrated that appellant continued to repeatedly telephone V.E.'s residence until she changed her phone number.  In light of the nature of the phone conversations and the history of the parties' relationship, a jury could reasonably conclude that appellant knew or had reason to know that his conduct would cause V.E. to feel terrorized.  Thus, we conclude that the evidence was sufficient to sustain appellant's conviction.

II.

            District courts are allowed "considerable latitude" in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  This court reviews jury instructions 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).  "An instruction is in error if it materially misstates the law."  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

            Appellant argues that the district court committed plain error in failing to instruct the jury on the element of intent.  But because appellant failed to object to the jury instruction at trial, appellant has waived the issue.  See State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (stating that a party's failure to object to a jury instruction at trial generally waives consideration of the issue on appeal).  Nevertheless, we may review the issue for plain error.  Id.  For us to grant relief for an unobjected-to error, "there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights."  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  If all three prongs of this test are satisfied, the court may "remedy the error to ensure fairness and the integrity of the judicial proceedings."  State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002).

            The district court's jury instructions followed, virtually verbatim, CRIMJIG 13.57 and 13.58.  10 Minnesota Practice, CRIMJIG 13.57-58 (Supp. 2002).  As stated in the last sentence of CRIMJIG 13.58, the district court added the elements of the underlying crimes.  But appellant argues that the element of intent was a statutory element of pattern of harassing conduct, and the district court's failure to provide a specific instruction on intent was plain error.  We disagree.

            In Mullen, the district court's jury instructions required proof of specific intent on the stalking charge, but not proof of specific intent to establish a pattern of harassing conduct under section 609.749, subdivision 5.  Mullen, 577 N.W.2d at 510.  On appeal to the supreme court, the defendant argued that the district court erred by not requiring proof of specific intent to establish a pattern of harassing conduct under section 609.749, subdivision 5.  Id.  The supreme court rejected this argument, stating that section 609.749, subdivision 5, fails to include any "mention of ‘intentional conduct.'"  Id.  Thus, the court held that section 609.749, subdivision 5, "requires only general intent."  Id. 

            Here, the district court included in the harassing-telephone-call instruction the second element, which is that appellant intended to abuse, disturb, or cause distress.  The CRIMJIG for pattern of harassing conduct does not include any statement of specific intent, and the jury instructions do not require any additional statement of intent beyond the instructions provided by the district court.  We conclude that the jury instructions fairly and adequately explained the law applicable to the case and did not materially misstate the law.  Accordingly, the district court did not commit plain error by failing to instruct the jury on the element of intent.

            Appellant filed a pro se supplemental brief.  We have considered the issues raised in that brief and conclude that they are without merit.

            Affirmed.

 

*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.