State of Minnesota, Respondent, vs. Alfredo Velazquez, Appellant.

State of Minnesota, Respondent, vs. Alfredo Velazquez, Appellant. A06-1228, Court of Appeals Unpublished, July 24, 2007.

This opinion will be unpublished and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

A06-1228

 

State of Minnesota,
Respondent,
 
vs.
 
Alfredo Velazquez,
Appellant.

 

Filed July 24, 2007

Affirmed

Minge, Judge

Concurring specially, Klaphake, Judge

 

Stearns County District Court

File No. T4-05-9389

 

 

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

 

Jan F. Petersen, St. Cloud City Attorney, Matthew A. Staehling, Assistant City Attorney, 400 Second Street South, St. Cloud, MN 56301 (for respondent)

 

John M. Stuart, State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414; and

 

Denis E. Hynes, Jennifer Holson Chaplinski, Assistant Public Defenders, 816 West St. Germain Street, Suite 410, St. Cloud, MN 56301 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges his misdemeanor conviction for violation of an order of protection.  Appellant argues that the district court had no authority to issue an order for protection requiring him to have "no contact" with the petitioner and that his conviction is not supported by sufficient evidence.  We affirm.

FACTS

 

            Appellant Alfredo Velazquez married A.V. in May 2002.  They have one minor child, T.V.  In January 2005, A.V. filed a petition for an order for protection.  The petition stated that A.V. had been involved with appellant in several domestic-abuse court actions beginning in 2002.  In her petition, A.V. alleged: "An emergency exists and I fear immediate and present danger of further acts of domestic violence."  The district court issued an ex parte order for protection.  A hearing was held on February 1, 2005, and the district court issued a post-hearing order for protection.  That order provides:

1.  [Appellant] shall not commit acts of domestic abuse against the [p]etitioner or the child . . . .

 

 2.  [Appellant] shall have no contact, either direct or indirect, with [p]etitioner . . . whether in person, with or through other persons, by telephone, letter, or in any other way . . . except through attorney for dissolution purposes only and phone contact for visitation purposes only, [and] a note book for communication purposes for child.

 

 3.  [Appellant] shall not enter [p]etitioner's residence . . . or any future residence, even if invited to do so. . . .

 

             On May 30, 2005, A.V.'s mother called law enforcement to report that she was concerned that A.V. and T.V. were with appellant, that she was worried that appellant would kill them, and that there was an order for protection outstanding.  Early in the morning on May 31, 2005, police officers began searching for A.V. and T.V.  Not finding them at A.V.'s residence, the officers ultimately went to appellant's address to investigate.  The officers spoke with the homeowner, who asked appellant to come upstairs from his basement apartment to speak with the officers.  Appellant denied that A.V. and T.V. were in the basement.  The officers asked if they could go downstairs.  Appellant said yes, but asked the officers to wait a moment while he made sure that the female downstairs was properly dressed.  Appellant then went downstairs, returned shortly thereafter, and allowed the officers into the basement. 

            Downstairs, the officers observed children's clothing, female clothing, a suitcase with A.V.'s name on it, and a purse.  Appellant said that the female had left.  One of the officers checked the backyard, where he found A.V. and T.V. sitting on a sleeping bag approximately 100 feet behind the house.  A.V. told the officer that she was hiding because she did not want appellant to get in trouble again.  In a statement taken later that morning, A.V. said that she had been with appellant since the prior evening and that appellant had not assaulted her.  Other records indicate that appellant had been with A.V. for four days. 

            The officers arrested appellant for violating the order for protection.  Appellant then waived his right to a jury trial and entered a Lothenbach plea.  The district court found appellant guilty of violation of an order for protection under Minn. Stat. § 518B.01, subd. 14(b) (2004), and sentenced appellant to 90 days in jail and a $1,000 fine with all but two days of jail time and $50 fine stayed.  This appeal follows.              

D E C I S I O N

 

I.

            The first issue is whether Minn. Stat. § 518B.01, subd. 6(a) (2006), gives district courts the authority to order a respondent to have "no contact," with a petitioner, when issuing an order for protection.  Appellate courts review questions of statutory interpretation de novo.  State v. Fleming, 724 N.W.2d 537, 539 (Minn. App. 2006).  The goal of statutory interpretation is to effectuate the intent of the legislature.  Educ. Minn.-Chisholm v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn. 2003).  If the meaning of a statute is unambiguous, we interpret the statute's text according to its plain language.  Molloy v. Meier, 679 N.W.2d 711, 723 (Minn. 2004).  But if a statute is ambiguous, we apply other canons of construction to discern the legislature's intent.  See Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn. 2002).  A statute is ambiguous only when it is susceptible to more than one meaning.  State v. Nelson, 671 N.W.2d 586, 589 (Minn. App. 2003).  

            The Minnesota Domestic Abuse Act authorizes 11 specific forms of relief and then a general provision grants the district court the authority to

order, in its discretion, other relief as it deems necessary for the protection of a family or household member, including orders or directives to the sheriff or other law enforcement or corrections officer as provided by this section.

 

Minn. Stat. § 518B.01, subd. 6(a)(1)-(12) (2006).  We have held that this statute grants district courts discretion to issue orders for protection providing both specific and general relief as necessary for the protection of the parties.  Hall v. Hall, 408 N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).  This court has characterized the Domestic Abuse Act as "a remedial statute," which receives "liberal construction."  Swenson v. Swenson, 490 N.W.2d 668, 670 (Minn. App. 1992).  At the same time, we recognized that the statute does not give district courts unlimited power and held that a protective order could not deny a victim access to her family home.  Id. 

            Here, the parties agree that the authority for the district court's directive, "[appellant] shall have no contact, either direct or indirect, with [p]etitioner . . . whether in person, with or through other persons, by telephone, letter, or in any other way," is not found in the first eleven clauses of Minn. Stat. § 518B.01, subd. 6(a).  Those provisions authorize specific action.  Minn. Stat. § 518B.01, subd. 6(a) (1)-(11).  The question is whether the district court has discretion to order no "contact" between a respondent and petitioner under the general clause which authorizes court action as a part of "other relief . . . necessary for the protection of . . . ."  Id., subd. 6(a)(12) (emphasis added).    

            Appellant argues that the word "contact" requires him to play an initiating role.  In the alternative, appellant asserts that constitutional due process standards are violated if clause 12 of Minn. Stat. § 518B.01, subd. 6(a), authorizes no-contact orders that are so broad that they would be violated even if the victim initiates the contact against the perpetrator's wishes and the perpetrator is a passive, unwitting participant.    

            Although appellant poses a troublesome challenge, the record in this case does not require that we resolve that challenge.  Here, the record does not establish that A.V. went to appellant's residence uninvited or that A.V. forced herself on appellant.  It does not appear that appellant was surprised by A.V.'s presence.  In fact, there is evidence that A.V. was with appellant for several days before law enforcement arrived.  When the officers arrived, appellant both told them that A.V. was not present and asked for time so that his female companion could dress.  Appellant then went downstairs, and A.V. apparently took their son and went out the back of the residence to avoid detection.  Appellant's conduct suggests that he was aware that he was in violation of the order for protection. 

            Appellant does not argue that the no-contact order was not necessary for the protection of A.V. and T.V. or that the district court's determination to issue such an order was an abuse of discretion.  In fact, there is no transcript of the order-for-protection hearing.  Because appellant has not provided all of the evidence presented to the district court, we cannot conclude that the district court abused its discretion in determining that there was a need for the no-contact order or in finding that appellant violated the order. 

            In this case, we need not and do not reach the question whether Minn. Stat.           § 518B.01 allows district courts to prohibit passive contact by the abuser when the victim initiates the encounter or whether the "no contact" language used in this order has that effect.  We conclude only that Minn. Stat. § 518B.01 permitted the district court to order appellant to have no contact with the petitioner and that as so limited, the order does not violate due process standards.[1] 

II.

            The second issue is whether appellant's conviction is supported by sufficient evidence.  Appellant asserts that his appeal "challenges the sufficiency of the evidence to support his conviction," but this argument is not well developed in his brief.  In response, the state contends that "[a]ppellant cannot challenge the sufficiency of the evidence on appeal after entering a Lothenbach plea and stipulating to the [s]tate's case."  The state cites State v. Busse,644 N.W.2d 79 (Minn. 2002), to support its position.  See also Minn. R. Crim. P. 26.01, subd. 3.

            In Busse, the supreme court stated that a defendant who avails herself of the Lothenbach procedure may not challenge the sufficiency of the evidence on appeal.  644 N.W.2d at 88-89.  "A defendant who wants to challenge the state's proof must proceed to trial instead of agreeing to a Lothenbach proceeding."  State v. Mahr, 701 N.W.2d 286, 291 (Minn. App. 2005) (discussing Busse).  As this court observed, "the Lothenbach procedure is intended merely to preserve pretrial issues when the facts are basically undisputed."  Id.; see also Minn. R. Crim. P. 26.01, subd. 3.

            Here, while documentation of appellant's waiver and plea is not included in the district court record, according to the district court, "[appellant] waived his right to a jury trial and entered a Lothenbach plea."  The record indicates that appellant stipulated to the state's case.  Accordingly, the supreme court's holding in Busse forecloses appellant's challenge to the sufficiency of the evidence supporting his conviction.  Busse, 644 N.W.2d at 88-89; Mahr, 701 N.W.2d at 291. 

            Although appellant's sufficiency-of-the-evidence challenge is foreclosed by Busse, we will briefly address the argument.  We note that in considering such a claim, our review is limited to determining whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the trier of fact to reach the decision that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989); see State v. Levie, 695 N.W.2d 619, 626 (Minn. App. 2005) (applying the same sufficiency-of-the-evidence standard of review to bench trials and jury trials).  We assume that the trier of fact believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).   

            As previously recounted in this opinion, the record amply supports the conviction.  Appellant had been with A.V. and T.V. for at least one and possibly four days.  Appellant stalled the police when they arrived at his apartment, denied A.V.'s presence, and A.V. fled into the backyard with her son.  Appellant's conduct indicates that he recognized that

he was in violation of the order for protection.  We conclude that appellant's conviction is supported by sufficient evidence.

            Affirmed.

 

Dated:

KLAPHAKE, Judge (concurring specially)

            I concur in the result but write separately to address several areas of concern regarding the broadly drafted, boilerplate order for protection, which ordered appellant to have "no contact, either direct or indirect" with his wife.  The trial court concluded that appellant violated the order when his wife came to his residence with their son, sought entrance, and claimed that she was going to have the order rescinded.     

            First, this case presents a potential constitutional argument that the statute authorizing the order is void for vagueness, either facially or as applied to appellant.  See Minn. Stat. § 518B.01 (2006).  A statute is void for vagueness if it fails to "define an offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."  In re Comm'n Investigation of Issues, 724 N.W.2d 743, 748 (Minn. App. 2006) (quotation omitted).  A statute that allows for no contact, including contact anywhere and contact initiated by third parties, arguably fails to give a defendant adequate notice and encourages arbitrary enforcement.  However, because this constitutional issue was not raised before the trial court, we do not base our decision on it.  See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (stating that appellate court will not consider constitutional questions that are not adequately briefed or litigated).

            Next, the no-contact order does not expressly warn appellant that he would be in violation if his wife voluntarily initiated contact with him at his separate home.  The order thus raises due process concerns because it does not provide proper notice that appellant could be in violation of the order merely by answering the door to his residence.  See Lambert v. California, 355 U.S. 225, 229-30, 78 S. Ct. 240, 243 (1957) (holding that if legislature is criminalizing behavior that would normally "not be blameworthy in the average member of the community," conviction must be preceded by actual knowledge that behavior constitutes offense to satisfy due process).  It is clear that the legislature intended to satisfy due process notice requirements by generally requiring a trial court to enumerate the specific locations subject to a no-contact order.  See Minn. Stat. § 518B.01, subd. 6(a) (2004).  Again, appellant did not raise this issue before the trial court.

            Finally, the use of this order poses a potential procedural problem.  Minn. Stat. § 518B.01, subd. 6(a), lists eleven specific types of relief that a court may include in an order for protection.  A "no contact" provision is not listed.  Respondent argues that a separate catch-all provision allowing the court to order "other relief . . . necessary for the protection of a family or household member" is valid statutory authority for a broad no-contact order.  Minn. Stat. § 518B.01, subd 6(a)(12).  However, no finding that the relief was "necessary for the protection of a family or household member" accompanied the order here.  But because an order that is unsupported by findings is voidable, rather than void, appellant had a duty to follow the order while it was in effect.  See Swenson v. Swenson, 490 N.W.2d 668, 671 (Minn. App. 1992) (holding that court "may enforce a voidable judgment until it is found erroneous"). 

            In summary, I believe that broad no-contact orders invite potential constitutional challenges, which, in an appropriate case, may be fatal.  A trial court should exercise caution when drafting such orders, and reliance on boilerplate language in a commonly used form may be insufficient to withstand a constitutional challenge.

 

 

 

[1] Preprinted forms used by the district courts for orders for protection contain the no-contact language at issue in this case.  See Form Emergency (Ex Parte) Order for Protection, Form 6-28 Order for Protection Following Hearing, Conference of Chief (District Court) Judges, November 1993.  Widespread use of the form language no doubt occurs.  Given the legal problems pointed out in the concurring opinion, use of the language is not risk-free.