State of Minnesota, Respondent, vs. Fedor Pakhnyuk, Appellant.
A17-0474
STATE OF MINNESOTA IN COURT OF APPEALS
Filed January 8, 2018
2018 WL 323067
Scott County District Court File No. 70-CR-12-23227
Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Bratvold, Judge.
S Y L L A B U S
A conviction for surreptitious interference with privacy under
BRATVOLD, Judge
On appeal from his conviction of interference with privacy of a minor by surreptitious intrusion, appellant Fedor Pakhnyuk challenges the sufficiency of the evidence. Because we determine that a conviction under
FACTS
Pakhnyuk, who was 38 years old, was staying at his brother‘s home in Shakopee to assist with a construction job. Pakhnyuk‘s niece, who was 14 years old, also lived at the house. On Saturday, July 14, 2012, Pakhnyuk‘s niece had three friends over for a slumber party; all were about the same age. That night, Pakhnyuk gave his niece and her friends alcohol and made several crude, sexual remarks to them. Pakhnyuk also touched the inner thigh of one friend while they watched television. The friend, K.L., left the room, as did the rest of the girls. They remained in the niece‘s bedroom for the rest of the night.
Five days later, Pakhnyuk, his niece, and K.L. were still staying at the same home. Pakhnyuk was sleeping on the living room floor when his niece and K.L. walked through. The niece went to her bedroom and K.L. went to the kitchen. Pakhnyuk stood up, hugged K.L., and “grabbed [her] buttocks.” K.L. ran upstairs and locked the door. Later that night, K.L. was undressing in the niece‘s bedroom when she saw Pakhnyuk sitting on the garage roof staring at her through the window. K.L. screamed. The niece roused her father, who confronted Pakhnyuk.
During the jury trial, the district court used the pattern instruction for interference with privacy. See 10A Minnesota Practice, CRIMJIG 17.32 (2006). The jury was instructed that, to convict Pakhnyuk of interference with privacy of a minor, they must find the state proved the following elements: (1) he “entered upon the property of another“; (2) he “surreptitiously gazed, stared, or peeped in the window or other aperture of the house or dwelling place of another“; (3) he “acted with an intent to intrude upon or interfere with the privacy of a member of the household of another“; (4) his “acts took place on or about July 19, 2012, in Scott County“; and (5) Pakhnyuk knew or had reason to know that a minor was present. Pakhnyuk did not object to the district court‘s instructions.
The jury found Pakhnyuk guilty of all charges. The district court entered convictions, stayed execution of sentence for the interference with privacy offense, and imposed 90 days in jail for the alcohol offense. Pakhnyuk appeals from judgment but challenges only the interference with privacy conviction under
ISSUE
Does a conviction under
Pakhnyuk‘s sole issue on appeal contends that the evidence is insufficient to support his conviction because, under the relevant statute, the state needed to prove that he entered his brother‘s property with the intent to interfere with the privacy of a member of his brother‘s household, but the state provided no evidence Pakhnyuk had such an intent. Since Pakhnyuk‘s sufficiency-of-the-evidence challenge involves determining whether his conduct met the statutory definition of an offense, we are presented with an issue of statutory interpretation, which we review de novo. See State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013).
In resolving the issue before us, we first decide to address Pakhnyuk‘s statutory interpretation issue, even though he raised it for the first time on appeal, because it is necessary in order to decide his sufficiency-of-the evidence challenge. Next, we conclude that
The state argues that Pakhnyuk forfeited this issue because he did not raise it at trial and because addressing the argument on appeal would be “fundamentally unfair” to the state. Pakhnyuk concedes that he did not explicitly raise this issue during trial, but he argues this court must interpret the relevant statute and determine the offense elements in order to consider his sufficiency-of-the-evidence challenge.
Generally, this court will not consider legal issues that the parties did not raise in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But the supreme court has held that “it is often necessary to interpret a criminal statute when evaluating an insufficiency-of-the-evidence claim.” State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017). Any “conviction based upon anything less than ‘proof beyond a reasonable doubt of every fact necessary to constitute the crime’ violates the Due Process Clause of the Fifth Amendment.” State v. Clow, 600 N.W.2d 724, 726 (Minn. App. 1999), review denied (Minn. Oct. 21, 1999) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)). We conclude that Pakhnyuk may raise a statutory interpretation issue for the first time on appeal because it is necessary to interpret
B. Minn. Stat. § 609.746, subd. 1(a), is ambiguous.
Violating
(a) A person is guilty of a gross misdemeanor who:
(1) enters upon another‘s property;
(2) surreptitiously gazes, stares, or peeps in the window or any other aperture of a house or place of dwelling of another; and
(3) does so with intent to intrude upon or interfere with the privacy of a member of the household.
For ease of reference, we will refer to
Our purpose in interpreting statutes “is to ascertain and effectuate the intention of the legislature.”
The parties disagree regarding to what “does so” refers in the intent element of subdivision 1(a). Pakhnyuk argues that “does so” refers to both the entry and gazing elements. In other words, according to Pakhnyuk, a conviction under subdivision 1(a) requires evidence that the defendant “enter[ed] upon another‘s property” with the “intent to intrude upon or interfere with the privacy of a member of the household,” and that the defendant “surreptitiously gazed” in the window of another‘s house with the same intent. The state argues that “does so” refers only to the gazing element.
Briefly restated, the issue is not the meaning of subdivision 1(a)‘s words, but the relationship of the words to one another. Accordingly, to properly interpret subdivision 1(a), we turn to the rules of grammar. Precedent establishes that we may rely on grammatical rules and other canons of interpretation before determining whether the statute is ambiguous and resorting to canons of construction.1
We are not persuaded by Pakhnyuk‘s contention because subdivision 1(a)‘s structure is different from that to which the series-qualifier rule typically applies. The series-qualifier rule applies “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series.” Pawlik, 845 N.W.2d at 252 (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) [hereinafter Reading Law]). Parallel construction means that words or phrases are arranged so that “[e]very element” of the parallel series is a “functional match of the others . . . and serve[s] the same grammatical function in the sentence.” The Chicago Manual of Style § 5.212 (16th ed. 2010) (emphasis added). The entry and gazing elements of subdivision 1(a) do not share enough grammatical similarity with one another to qualify as a “straightforward, parallel construction.” The entry element begins with a verb, while the gazing element begins with an adverb that applies to a series of verbs. “Surreptitiously” has no functional equivalent in the entry element.
While neither party raises a third grammatical rule, we conclude that the “nearest-reasonable-referent” rule is best suited to understanding the meaning of subdivision 1(a).
But the semicolons separating each element of subdivision 1(a) disrupt the simple application of any of the three grammatical rules already mentioned. “Punctuation in a legal text will rarely change the meaning of a word, but it will often determine whether a modifying phrase or clause applies to all that preceded it or only to a part.” Reading Law, supra, at 161. Because semicolons separate the elements of the relevant statute, we are persuaded that grammatical rules do not definitively clarify subdivision 1(a). See id. at 144-53. “The series-qualifier rule may be applicable where the text of a statute is a flowing sentence that lacks any distinct separations.” Pawlik, 845 N.W.2d at 252 (quotation omitted). Here, semicolons, numbers, and line breaks divide subdivision 1(a), and the series-qualifier rule does not apply. Similarly, the supreme court has suggested that the last-antecedent rule may not be applicable if a “semicolon or a line break” separates statutory elements. City of Oronoco v. Fitzpatrick Real Estate, LLC, 883 N.W.2d 592, 595 (Minn. 2016).
Because it is not reasonable to prefer one of these grammatical rules over the other when interpreting subdivision 1(a), we conclude that the intent element of subdivision 1(a) is subject to multiple reasonable interpretations, and thus is ambiguous.4 As a result, we consider other indications of the legislature‘s intent.
C. Based on the former law, the intent element of subdivision 1(a) applies only to the gazing element.
“When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters . . . the former law, if any.”5
Any person who enters upon another‘s property and surreptitiously gazes, stares, or peeps in the window of a house or place of dwelling of another with intent to intrude upon or interfere with the privacy of a member of the household thereof is guilty of a misdemeanor.
Id. For succinct reference, we will call the 1979 version of section 609.746, “the former law.”
Section 609.746 has undergone changes since its original enactment, but the legislature has not materially altered the elements of the crime. In 1994 the legislature adopted the current structure by moving the placement of “is guilty of a misdemeanor” to the beginning of the subdivision and separating three numbered elements, divided by semicolons. 1994 Minn. Laws ch. 636, art. 2, § 47, at 2216-17. The 1994, changes also added “does so” at the beginning of the intent element and “or any other aperture” to the gazing element. Id. In 2005, the legislature made violating subdivision 1(a) a gross misdemeanor. 2005 Minn. Laws ch. 136, art. 17, § 43, at 1150. Subdivision 1(a) has not been altered since 2005.
With this textual history in mind, we interpret the former law and rely on grammatical rules to guide our analysis. The Supreme Court‘s opinion in Barnhart v. Thomas discussed a sentence that is similar to the former law and, thus, the Court‘s analysis is instructive. 540 U.S. 20, 27, 124 S. Ct. 376, 381 (2003). In that case, the Supreme Court provided the following example: “You will be punished if you throw a party or engage in
The flowing sentence structure of the Supreme Court‘s example closely resembles the former law, and we are persuaded that a similar grammatical analysis applies. The series-qualifier rule and the last-antecedent rule do not apply to the former law for the same reasons these rules do not apply to the current law. Because punctuation did not separate the three elements in the former law, we conclude that the nearest-reasonable-referent rule applies. Under that rule, “with intent to” is a post-positive modifier, and the nearest referent is the gazing element.
Our interpretation of the former law persuades us to reject Pakhnyuk‘s interpretation of subdivision 1(a) for two reasons. First, we discern no legislative intent to alter the meaning of the former law because the legislature made only minor alterations in 1994 when it adopted the current version of subdivision 1(a). Compare 1994 Minn. Laws ch. 636, art. 2, § 47, at 2216-17, with 1979 Minn. Laws ch. 258, § 19, at 555. According to the supreme court, “[i]t is a generally accepted rule of statutory construction that a revision of existing statutes is presumed not to have changed their meaning, even if there [are] phraseological alterations, unless an intention to change clearly appears from the language of the revised statute.”6 Champ v. Brown, 197 Minn. 49, 55-56, 266 N.W. 94, 97 (1936);
Here, the 1994 amendments to subdivision 1(a), which added numbers and punctuation to create the three separate clauses in the current statute, do not suggest that the legislature intended to change the elements of the offense. 1994 Minn. Laws ch. 636, art. 2, § 47, at 2216. This is so even though the legislature clearly knows how to adopt
A person who, with the intent to harass, abuse, or threaten another, repeatedly follows or pursues another, after being told not to do so by the person being followed or pursued, is guilty of a misdemeanor.
1987 Minn. Laws ch. 307, § 4, at 1839. By placing the intent element at the beginning of the subdivision and separating it from the other elements with commas, the legislature ably expressed that the “intent to harass” element applied to both (1) “repeatedly follows or pursues another” and (2) doing so “after being told not to . . . by the person being followed or pursued.” Id. Additionally, subdivision 2 contains two elements that may occur over a period of time; this is similar to the entry and gazing elements that may occur over a period of time.
Second, by using the former law to construe subdivision 1(a), our holding gives effect to the legislature‘s intent. Previous caselaw has noted that, in criminalizing the intrusions described in section 609.746, the legislature intended to protect individual privacy. State v. Sopko, 770 N.W.2d 543, 546 (Minn. App. 2009) (holding the “object to be attained” in
Based on the plain language of the former law, the legislature‘s modest changes when it adopted the current version of the relevant statute, and previous caselaw holding that the legislature intends that section 609.746 protect individual privacy, we conclude that the intent element of subdivision 1(a) modifies only the gazing element and does not modify the entry element. Thus, while a conviction under subdivision 1(a) requires proof of intent to intrude when a defendant “gazes, stares, or peeps” into a home, we hold that a conviction under this statute does not require that the state prove a defendant entered the property of another “with the intent to intrude upon or interfere with the privacy of a member of the household.”
Because violating subdivision 1(a) does not require evidence that Pakhnyuk entered his brother‘s property with the intent to interfere with the privacy of a member of the household, we affirm Pakhnyuk‘s conviction.
Affirmed.
State of Minnesota, Respondent, vs. Fedor Pakhnyuk, Appellant.
A17-0474
STATE OF MINNESOTA IN COURT OF APPEALS
JOHNSON, Judge (dissenting)
I respectfully dissent from the opinion of the court. I would conclude that
A.
“The first step in statutory interpretation is to determine whether the statute‘s language, on its face, is ambiguous.” State v. Thonesavanh, 904 N.W.2d 432, 435 (Minn. 2017). “‘A statute is ambiguous only if it is subject to more than one reasonable interpretation.‘” Id. (quoting 500, LLC v. City of Minneapolis, 837 N.W.2d 287, 290 (Minn. 2013)). If a statute is unambiguous, “then we must apply the statute‘s plain meaning.” State v. Nelson, 842 N.W.2d 433, 436 (Minn. 2014) (quotation omitted). But if a statute is ambiguous, “then we may apply the canons of construction to resolve the ambiguity.” Thonesavanh, 904 N.W.2d at 435.
Pakhnyuk‘s argument focuses on the third clause of
To determine whether the statute is ambiguous, we should begin by closely examining the text of the statute. See Thonesavanh, 904 N.W.2d at 435. The key phrase is “does so,” and the key word is “so.” The word “so” has a multitude of meanings, depending on how the word is used. See, e.g., The American Heritage Dictionary 1709 (3d ed. 1996); The Oxford Universal Dictionary 1933 (3d ed. 1964); Webster‘s New International Dictionary 2384 (2d ed. 1946). When used as an adverb, the primary meaning of the word “so” is “[i]n the condition or manner expressed or indicated.” American Heritage Dictionary, supra, at 1709 (3d ed. 1996); see also Oxford Universal Dictionary, supra, at 1933 (3d ed. 1964) (“[i]n the way or manner described, indicated, or suggested“). That definition, by itself, does not confirm either the state‘s interpretation or Pakhnyuk‘s interpretation. No definition of the word “so” compels the conclusion that one party‘s interpretation of the statute is reasonable while the other party‘s interpretation is unreasonable. Thus, both parties’ interpretations of the statute are reasonable. Accordingly, the statute is ambiguous. See Thonesavanh, 904 N.W.2d at 435.
B.
Because the statute is ambiguous, we may apply canons of statutory construction to determine the meaning of the statute.1 See id. I agree with the majority opinion insofar as
I respectfully disagree with the majority opinion insofar as it interprets section 609.746, subdivision 1(a), by determining the meaning of a former version of the statute and then imputing that meaning to the current version of the statute. See supra at 11-16.
It is elementary that a person may not be convicted of a criminal offense set forth in a statute that no longer is in force and effect. See, e.g., State v. Kilmer, 741 N.W.2d 607, 610-11 (Minn. App. 2007). Yet that is the effect of the majority opinion‘s reasoning. Granted, courts sometimes compare a former version of a statute with the current version of the statute, but only if doing so sheds light on the meaning of the current version, which may occur if an amendment to the statute reveals a certain legislative intent. For example, in Auto Owners Ins. Co. v. Perry, 749 N.W.2d 324 (Minn. 2008), the supreme court compared the current version of a statute to the former version and inferred that, “By eliminating the phrase ‘[i]n all other cases’ . . . , the legislature likely intended to limit the definition of” a key word in the statute. Id. at 328 (alteration in original). Similarly, in State v. Holmes, 787 N.W.2d 617 (Minn. App. 2010), this court compared the current version of a statute to the former version and inferred that, by changing the phrase “on account of such improvement” to “for the improvement,” the legislature intended the statute to have a different meaning. Id. at 622-23. But in this case, the majority opinion does not refer to the former version of the statute to identify a difference between versions and thereby discern the meaning of the current version. Rather, the majority opinion interprets the former version and then simply transfers its interpretation of the former version to the current version, effectively allowing the former version to determine
Nonetheless, if I were to attempt to determine the meaning of the former version of the statute, I would not apply the nearest-reasonable-referent canon. See supra at 12-13. I would not do so because the nearest-reasonable-referent canon applies only if “the syntax involves something other than a parallel series of nouns or verbs.” See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 152 (2012) (emphasis added). The nearest-reasonable-referent canon does not apply to the former version of the statute because the former version contained a parallel series of verbs. Specifically, the former statute had a parallel series of two verbs or groups of verbs: first, the single word “enters” and, second, the three words “gazes, stares, or peeps,” which are essentially synonymous.3 The three words that constituted the second part of the parallel verb structure were phrased in the disjunctive so that any of them may have operated in the same
If I were to attempt to determine the meaning of the former version of the statute, I would apply the series-qualifier canon. The series-qualifier canon applies if, first, “there is a straightforward, parallel construction that involves all nouns or verbs in a series” and, second, “the text of a statute is a flowing sentence that lacks any distinct separations.” See Pawlik, 845 N.W.2d at 252 (quotations omitted). Both of those prerequisites are satisfied in this case. The series-qualifier canon makes sense in this situation because it comports with well-accepted rules of grammar and common usage. An example provides an illustration: “Jane sings and dances with enthusiasm.” A reader naturally would understand
Thus, if I were to attempt to determine the meaning of the former version of the statute, I would construe the former statute to have meant that the state must prove that a defendant intended to intrude upon or interfere with the privacy of a person inside a home both when the defendant entered another‘s property and when the defendant gazed, stared, or peeped into a home on the property.5
As stated above, I would not interpret section 609.746, subdivision 1(a), by attempting to determine the meaning of the former version of the statute. Rather, I would confine my analysis to the current version of the statute, and I would reason that no canon of statutory construction is available to determine its meaning. Accordingly, I believe that the statute is so grievously ambiguous that the meaning of the statute must be determined by the rule of lenity. See Nelson, 842 N.W.2d at 443-44. “The rule of lenity requires us to resolve the ambiguity in [a statute] in favor of the criminal defendant” so as to “‘vindicate[] the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain.‘” Id. at 444 (quoting United States v. Santos, 553 U.S. 507, 514, 128 S. Ct. 2020, 2025 (2008)). Consequently, I would interpret section 609.746, subdivision 1(a), to require the state to prove that a defendant intended to intrude upon or interfere with the privacy of a person inside a home both when the defendant entered another‘s property and when the defendant gazed, stared, or peeped into a home on the property.