State v. Orsello

Minnesota, Respondent, STATE ORSELLO, Edward

Paul Appellant.

petitioner,

No. C2-94-1435.

Supreme of Minnesota. Court

Sept. 1996. Rehearing on Grant of

As Amended

Oct. 1996. Stuart, Defender,

John M. State Public Jokela, Cynthia Special Assistant Public De- fender, P.A., Byron, Fredrikson & Minne- apolis, Kimberly Nordby, Special J. Assistant Defender, Minneapolis, Public Appellant. for III, Humphrey, Attorney Hubert H. Gen- eral, Early, Attorney B. James Assistant General, Paul, Reuter, Chisago St. James T. County Attorney, City, Respon- Center dent.

OPINION GARDEBRING, Justice. case, appellant in this Paul Edward

Orsello, appeals from his conviction under “stalking” Minnesota’s argues Orsello ambiguous statute is as to the level of intent required to convict him and that the statute should be read to alternative, Orsello asserts only general statute is construed to unconstitutionally then it is “void for vagueness.” appeals agreed The court of language of with the trial court that the required only general rather than specific as an element of the al Initially, crime. intent crime. parties and the conclude that We conviction under the stat- specific trial court assumed that intent was requires proof specific and, ute intent and required therefore, prosecution that the therefore reverse. prove appellant had intended to stalk his wife. The trial court thus allowed the admis- Paul and Diane Orsello were married for appellant’s sion of violating conviction for years, over nine but were divorced 1992. order, harassment Spreigl evidence on the custody Diane Orsello received of their three issue of intent.1 evidence, After the close of Appellant children. granted was visitation however, the trial court only concluded that right phone and the his children on certain intent was and remarked days However, of the week. the record re- prosecution that the prove had failed to spe- flects that he continued to contact his wife cific intent.2 The trial court therefore modi- frequently phone and children via the and in jury fied the model instruction for the stalk- writing. appellant suggested Often reconcili- ing which specific stated that ation, contact, or at least social with his crime, was an element of require only former wife. While the tenor of con- these general intent.3 See 10A affectionate, Judges Minn.Dist. ap- tacts was often sometimes Ass’n, Practice, Minnesota pellant threatening angry. was CRIMJIG 24.57 or one On occasion, appellant gun, showed his ex-wife a stating off,” hoped go he “it wouldn’t and appeal, On appeals the court of affirmed later told her she could “burn in hell.” appellant’s conviction, agreeing with the trial court on sought the issue of intent relying

Diane Orsello received the canons of restraining harassment order in construction June and on prohibiting appellant statutory language absence legisla from contact with his family previously ture had manner other than that indicated it would use to allowed designate by previous Repeated court order. crimes. State v. Orsello, family (Minn.App. tacts with his N.W.2d resulted his convic- 1995); see violating tion for 609.02 harassment order in 1993. His contact with his wife and children The crime of is new and has no and, occurring continued based on incidents precise analogue Following in common law. from June to charged October he was by 1989 murder of a television actress with under Minn.Stat. fan, many legislatures obsessed state enacted criminalizing stalking. However, statutes regard-

There was some confusion at trial because the crime of legis- is a new ing gener- creation, is, whether was a or lative present, widely there at no Spreigl, 1. rights See State v. Minn. of another the commission of an Spreigl this court established a unlawful act. process previous (2) stalked, followed, for admission of evidence of pursued or another. (3) crimes or ‘had acts" the defendant. Such property returned to the of another without evidence is admissible for certain limited right property claim of to the or consent of purposes, one of which is the issue of intent. See authority one with to consent. 404(b) (prior Minn.R.Evid. crimes “bad (4) calls, and/or repeatedly telephone made or in- act” evidence not admissible to show defendant telephone duced another to make calls to character, may has a bad be admissible to defendant, whether or not conversation motive). identity, show or ensued. (5) telephone made or caused the of another 2. We note that while the trial court remarked repeatedly continuously ring. or prosecution prove that tent, failed to in- (6) repeatedly used the mail or delivered or suggests our review of the record that there letters, delivery telegrams, caused the presented was spe- evidence at trial from which packages, objects. or other cific intent could be inferred. (7) engaged conduct that inter- fered with another or intruded on juiy 3. The model instructions state in relevant person’s privacy liberty. or part: Second, defendant intended to harass harassing stalking engage elements of a crime are: To "harass” means to in intentional First, the defendant conduct in a manner that would cause a rea- (1)directly indirectly manifested sonable under the circumstances to feel injure person, property, or intent to oppressed, persecuted intimidated and calls, Generally- telephone repeatedly makes legal definition it.4 accepted telephone to make stalking encompasses predatory induces a victim calls speaking, actor, to the whether or not conversation usually at a indi- directed behavior ensues; repeated A -will vidual. stalker telephone behavior, seemingly makes or causes the benign, some- sometimes repeatedly continuously or fright- another threatening, which nonetheless times ring; her his or victim. Stalk- ens intimidates and (6) injunctive the mail or repeatedly offer relief in uses delivers ing typically statutes letters, delivery or the protective or a restrain- causes tele- either the form of objects; grams, addition, many packages, or other or of these stat- ing In order. (7) willful, repeated, any in engages malicious other utes criminalize person duct with another that interferes at conduct directed privacy person’s the or alarms, annoys, per- intrudes on or harasses that actually liberty. son.5 (1993). 609.749 anti-stalking legisla- its enacted Minnesota surrounding inci- publicity tion amid case, in 1993 In this the issue is whether the stalking behavior which resulted dents of “general statute defines a crime of Ward, Note, Minne- “specific murder. See Cassandra intent” or intent.” a crime The Anti-Stalking meaning Statute: A Durable “intent” in sota’s the word criminal law is, terms, given many Be- in so similar at Tool Protect Victims Terroristic its use from 613, (1994) least, very confusing. A criminal havior, Ineq.J. the state of 12 & 633-34 Law mind, intent, is, course, leading a criminal up to (describing the events Minneso- necessary statute). any having crime element of its adoption ta’s origin Wayne in common law. See R. La- convicted, appellant under which was Fave, Law, 3.5(e) Substantive Criminal follows: reads as (1986). If chooses in the not to As in this 1. Definition. used Subd. in a clude section, means to inten- “harass” ciime, implied one is as a matter of law. conduct in a manner that: tional Charlton, 26, (Minn. v. 30 State 338 N.W.2d (1) cause a reasonable un- 1983) (citing v. United United States States oppressed, circumstances to der the feel Co., 422, 436-37, Gypsum intimidated; persecuted, and (1978)). 57 L.Ed.2d 854 (2) reaction on part causes this the exist, types the victim. Two of intent general. requires only General 2. Harassment Subd. intentionally engaged specif defendant person who crimes. A harasses another ic, Lindahl, prohibited conduct. State v. committing acts (Minn.1981). contrast, N.W.2d guilty gross misdemeanor: requires that defendant (1) indirectly directly or manifests a produce acted with intention to injure person, or intent to result, premeditated such as is the case rights property, or another Charlton, 30; murder. at La- N.W.2d act; of an unlawful commission Fave, 3.5(a). supra, §at follows, another; stalks, pursues property returns to the of another developed legal scholars When right Code, actor without claim of to the they sought Model Penal to ameliorate one property concept or consent of with authori- the confusion inherent of “in consent; ty adopted part tent” and a four delineation of reaction, _ Comment, Stalking Are Statute Un part Laws on the caused chuk. Overbroad?, constitutionally Vague or % * * * Nw. Ass'n, Judges Minnesota Prac- 10A Dist. Minn. U.L.Rev. 769 tice, CRIMJIG 24.57 Statutes, Sohn, Anti-Stalking supra, Sohn, 5. generally Anti-Stalking at 4. See Stat Ellen F. Victims?, 210; 646.9(a) (West TheyActually see utes: Do Protect also Cal.Penal Code 30 Crim. 1994); 1995). (May/June Boy L.Bull. 203 M. Katherine prohibited by other crim- intent/specific nalizes conduct also replacing the inal and that those other statutes dichotomy. statutes See Minn.Stat. Thus, argues appel- require specific intent. Penal di- The Model Code subd. 9 lant, previously had deter- concepts: purpose, into four vides intent comprising part of new mined conduct negligence, and recklessness. knowledge, crime of When Model Penal Code require specif- crime should also current legislature drafted its Minnesota ic intent. 1963, it from the code in borrowed criminal forth the when it set Model Penal Code statutory argument, appel In his second following guidelines as to how it would hence- Kjeldahl, lant relies on State designate criminal intent: forth (Minn.1979), where this court held that legislature could criminalize an act with the (1) an criminal intent is element When a out mention of intent level chapter, in this intent is of a crime such thereby general a crime. Id. at create intent “intentionally,” the indicated the term Appellant legislature notes 61. that the to,” phrase phrase “with intent “with stalking general a made intent have could that,” verbs or some form of the intent crime without reference to intent. Be “know” or “believe.” it chose to include in the statute the cause (2) only actor requires “Know” that the phrases “in a man “intentional conduct” and specified that the fact exists. believes that,” legisla appellant argues ner that the actor “Intentionally” means that the to re ture must have intended the statute thing or purpose to do the either has a quire general of intent other than some level that specified or believes cause the result § 609.749 intent. See Minn.Stat. actor, by the if success- performed the act is, general a That in order to create addition, ful, In will cause that result. crime, simply legislature could have said (6), actor except provided as clause n n n means to that ‘“harass’ knowledge of those facts which must have * * * * * But did that Id. it necessary make the actor’s conduct are to moreover, not; language specifically it added forth after the criminal and which are set Therefore, referring argues appel to intent. “intentionally.” word lant, stalking be construed statute should to” or “with intent that” ‘With intent to intent. a means that the actor either has relying principally responds, The state thing speci- to do the or cause result 609.02, of one of the section the absence act, successful, if fied or believes that the phrases, that the statute is subdivision 9 cause that result. will clearly crime. The state a 609.02, Thus, subd. 9 argues legislature could have used that the interpret to a criminal when this court seeks “magic previously-designated one these level of intent re- to determine the statute to, indicating its phrases,” chose not thus statute, culpability under the we quired for only general intention statutory guide. must first turn to the above argument appellant’s that respect With See, e.g., Raymond, State conduct” phrases “intentional inclusion of the (Minn.1989). indicates a “in a manner that” arguments Appellant presents two that state offers an analo- requirement, requires specific stalking statute Minnesota’s stalking statute and the as- gy between drafting the unusual one based on criminal- The assault statute sault statute. bodily and the other linked to constitu- the statute of’ intentional infliction “[t]he izes requirements. Appellant’s statutory harm; tional “intentional” both stat- the word First, state, drafting argument utes, only he ar- is twofold. modifies contends the statutory language supports gues that the the case of the word —in statute, present that intended to “conduct” —and is inference the word crime, criminalizing a al- accidental make to avoid 609.02, though phrases Compare of the exact it did not use one duct. 10(2) (1994) Appel- 9. with Minn.Stat. listed section subdivision that the statute crimi- lant observes 131, 134-35, 158 County, presents constitutional ar 134 Minn. N.W. Appellant also contending begin that the statute must be We with a careful gument, exami require specific intent or it will be statutory read language nation of the and a itself is, unconstitutionally vague. That statutory reference to the tools of construc only general intent requiring provided by legislature. tion adequate notice of the conduct it give fail to notes, “spe the state none of the As thus, and, constitutionally prohibits would be language cific intent” of section subdi Connally v. General Construc infirm. See present vision statute. Co., 385, 391, 126, 127, tion However, peculiar drafting because of the (1926). Appellant that 70 L.Ed. asserts statute, analysis we conclude that our apply the rule of this court must go particular, must further. we note two avoid, requiring pos construction courts aspects unusual of the statute that have a sible, interpreting in a statutes manner bearing required. on the level of intent them unconstitutional. Minn.Stat. renders First, presents the statute list of detailed 645.17(3) (1994). Further, appellant plainly criminal code. These other statutes constitutionality holds the of the statute. Second, Bronson, intent. as men on Forslund 305 State Behalf of (Minn.1981). 748, Thus, above, stalking 751 tioned statute’s definition N.W.2d “ to stalking should be construed re statute section states that ‘harass’ to means quire In the context specific intent. of in in intentional a manner that * * argument, appellant also con constitutional 609.749, § *.” 1 Minn.Stat. subd. that, the level of intent re tends because phrases, The last two “intentional conduct” quired by stalking ambiguous, statute is that,” appear and “in a manner indicate an to interpreted with reference to the it must be requirement greater simple gen than lenity,” “rule of which holds that so-called eral intent. “ambiguity concerning the ambit of criminal importance We consider first the of the lenity’ in favor of statutes should be resolved other, specific reference to intent crimes towards the defendant. Rewis v. United stalking within the statute. While not a States, 808, 812, 1056, 1059, 401 U.S. 91 S.Ct. clarity, part stalking model of of the statute (1971); McKown, 28 L.Ed.2d 493 State v. carefully is nonetheless drafted. section 720, (Minn.App.1990), N.W.2d aff'd 609.749, legislature precise- subdivision the (Minn.1991), denied, N.W.2d 63 cert. 502 U.S. ly enumerated the actions that would 1036, 112 S.Ct. L.Ed.2d 786 engages violate the statute. A who in Applying this rule here would a de any acts is in violation of the requires specific termination that the statute stalking statute: intent as an element the crime. (2) stalks, follows, another; pursues or argument The dismisses Orsello’s state property returns to the of another if potential about statute’s unconstitutional right the actor is without claim of to the semantics, ity quibbling noting over property or consent of one with authori- need not define each and ev consent; ty to ery urges term it uses. state calls, repeatedly telephone makes or straightforward is a crime and that telephone a victim to will, induces make calls persons understanding of common to actor, to the whether or not conversation paraphrase aphorism Justice Stewart’s about ensues; obscenity, they know it when see it. See Ja cobellis v. 1683, 12 L.Ed.2d 793 Ohio, 184, 197, (6) repeatedly uses the mail or delivers ^{[*] [*] [*] [*]} letters, delivery or caúses the tele- goal involving statutory in cases Our objects; grams, packages, or other or interpretation is, course, give effect to (7)' engages in other drafting the intention of the Ramsey statute. State v. District Court duct that interferes with another Clarity person’s privacy purpose. on or tradicts this must be a or intrudes hallmark of the criminal if it liberty. law is to func- and, thus, parallels tion we believe that the 609.749, subd. Minn.Stat. existing requiring between criminal statutes listing for This is notable its behaviors intent and the statute mili- similarity to the definitions of other close finding tate toward that the crimes, clearly require specific all of which requires specific also intent. example, anyone “repeated- who intent. For regard to the other acts With enumerated ly uses the mail or delivers or causes the parallels in subdivision which do not have letters, delivery telegrams, packages or code, elsewhere the criminal we conclude objects” has violated the stat- other language pres virtue of their and their 2(6) (1993). 609.749, ute. subd. Minn.Stat. subdivision, proper ence that it is already “re- It is a crime Minnesota to infer the for jletters, peatedly mails or use[]the deliver[ note, example, them as well. that the We telegrams, packages” when done “with the language first list action is east abuse, disturb, intent to or cause distress.” strongly indicative of It 1(3) (1994). subd. criminalizes the direct or indirect manifesta analogy provided in Another the com- injure purpose tion of “a or intent “repeatedly mak[ing] parison of the crime person, property, rights of another calls, telephone or not conversation whether commission of an unlawful act.” Minn.Stat. ensues, abuse, disturb, with intent 2(1) (1993). language, This distress,” cause to,” remarkably “a simi l(l)(b) (1994), provision in with the similar stringent require lar both to the most which criminalizes “re- Code, “purposely,” ment of the Model Penal calls, peatedly mak[ing] telephone or in- legislature’s to the Minnesota codifica ducting] telephone a victim to make calls to it,of “with to.” Both tion of the latter actor, whether or not conversation en- fully phrases mean that actor intends the (1993). 609.749, 2(4) § sues” Minn.Stat. subd. Compare or her actions. result his Model cases, language nearly In both used is 2.02(2)(a)(i) (1962) (a § person Penal Code identical, requirement that the intent is save * * * “purposely it is his con [when] acts statute, in clearly spelled out the former object engage in conduct of that scious n * * ”) stalking not in the statute. a nature or to cause such result with in example provided A final is the “tres- 9(4) (“ 609.02, § “with intent Minn.Stat. subd. * * * pass” provision of statute. It also a a to’ means that the actor either has crime Minnesota to enter on another’s thing the result do the cause property through to look the window or other act, specified if success or believes that aperture dwelling of a house or “with the result.”). ful, will cause that upon intent to intrude or interfere with the argument, appellant’s As for second relat- privacy of a member of the household.” section, stalking ing to the statute’s definition 1(a) (1994). 609.746, § subd. The Minn.Stat. language of 1 we believe that the subdivision provision, a similar statute contains our conclusion that reinforces making engage it a crime to “in other required the text of the stat- harassing conduct that with anoth- interferes that: used in “[a]s ute. Subdivision states person person’s privacy er on the intrudes section, in- ‘harass’ means to 2(7) liberty.” tentional conduct in a manner that: 2(3). (1993); see also id. at subd. under the circum- cause reasonable legislative in- These similarities evince a oppressed, persecuted, or in- stances to feel timidated; crimi- tention to make the above mentioned causes this reaction on nal statutes consistent. To conclude that part of the victim.” Minn.Stat. crime, based on identical be- con- conviction subd. 1 Canons of havior, requires give to each one level intent under one struction us to effect any interpreta- statutoiy provision level of in- to avoid another word statutory provision, any portion of the tent under a second tion that characterizes surplusage. required statute as statement of the level of intent must 645.17(2) legislature The needed here, lenity: be resolved favor of to re- only itemize the actions to be criminalized to quire specific Liparota intent. See v. United Lindahl, general create a intent crime. See States, 419, 427, 2084, 471 U.S. 105 S.Ct. quali- It did 309 N.W.2d at 767. not need to 2089, (1985); McKown, 85 L.Ed.2d 434 fy type required. of action In further the N.W.2d at 725. words, general other intent version of this adjective statute did not need either the “in- give adequate Criminal statutes must no “in phrase tentional” or the a manner that.” general public tice to the of what conduct is See Minn.Stat. prohibited. penal terms of a “[T]he statute words, believe, The addition of these we fur- creating sufficiently a new offense must be that ther demonstrates statute explicit subject to inform those who are to it must for how does one what part conduct on their will render them act “in a manner that would cause a reason- * * penalties Connolly, liable its oppressed” able to feel unless one 391, Connolly U.S. at 46 S.Ct. at 127. The knowledge, acts with at least the if not the Court held that statutes must be written in purpose, to cause such reaction? To con- possi- persons ordinary clude otherwise would be to admit the such a manner that intel bility might guilty accidentally that one be ligence guess meaning need not at their stalking and that seems inconsistent with the application. differ to their at U.S. legislative background and intent of the stat- 391, may 46 S.Ct. at 127. A court under ute. gist legislative expression,” stand “the today We hold that Minn.Stat. understanding but such does not make a (1993), stalking, which defines the crime of See, constitutionally e.g., clear. Lan requires intent. The Jersey, zetta New clear, should be but it need not be redundant. 83 L.Ed. 888 legislators, having subdivision our once designated certain actions as criminal when assumption state’s ais done with were under no obli- straightforward persons crime and thus gation again they to do so when included intelligence readily common will be able to them the statute. In subdivision prohibited discern what behavior is misses included terms not point the constitutional produce crime, but which “[Wjhen clarity. choice has to be made be- given meaning. must still be We hold that to readings tween two of what [the read the statute requires coherent whole legislature] crime, appropri- has made a it is stalking specific that abe intent crime. ate, alternative, before we choose the harsher Although necessary it is not to our conclu- require spoken to that [it] should have sion, appellant’s we find merit constitution- language that is clear and definite.” United argument al Appellant as well. asserts that States v. Corp., Universal C.I.T. Credit 344 interpreting stalking statute to 218, 221-22, general 227, 229, intent will U.S. 73 render the statute uncon- S.Ct. 97 L.Ed. stitutionally vague provide because it will not (1952); McKown, 260 461 N.W.2d at 725. It public sufficient notice to the of what conduct may people ordinary well be that intelli- prohibited. Appellant is also asserts that a gence might get “gist” general statute would be con- But, statute. appellant’s the confusion at stitutionally infirm it because would fail to regarding trial statute’s intent give adequate prohibit- notice of the conduct requirement belies that assertion. At the ed and ambiguous. thus would be See Con- outset, parties all involved assumed that the Co., nolly v. General Construction required proof statute To intent. 385, 391, 126, 127, 70 L.Ed. 322 comport do so seemed to with common sense. (1926). Ambiguous statutes, appel- criminal Only reading carefully after the statute did contends, lant interpreted must be with ref- arise; apparently, confusion when the attor- erence to lenity. the so-called rule of neys case, judge they and the first saw this order to public ensure fair notice of what quickly concluded that it prohibited by statutes, action is contained a the criminal this rule lacking holds that a statute requirement. a clear Therefore, I Thus, raised for the first time here. to conclude if we were required only general respectfully dissent. and, might vagueness for be void the statute My point departure first from the ma- thus, we do not base unconstitutional. While jority is its characterization of Minn.Stat. of this consti resolution our decision product “peculiar § 609.749 as a draft- issue, our it does buttress tutional ing’.’ apparently offered as a substitute for Moreover, — analysis. we observe ambiguity requisite rationale for as the en- have of several other states similar statutes legislative gaging in a search for vagueness chal subject of void for been the 645.16; Phelps Heilman, Minn.Stat. see also Com- See, lenges. e.g., People v. Cal. Co., (1994), 891, rev. monwealth Land Title Ins. 537 N.W.2d Cal.Rptr.2d App.4th State, denied, 25, 1994); 271, (Minn.1995); (Aug. Culbreath v. Ed Herman & Sons v. (Ala.Crim.App.1995), (Minn.1995). cert. de Russell, 667 So.2d 156 I 1995). nied, (Aug. none of those While § 609.749 is either do not believe Minn.Stat. peculiarities drafting statutes have had peculiarly ambiguous. nor is it As drafted most of those that have out, majority points has the statute none intent re survived have included legislature to of the words we are told quirement. for, by application look of Minn.Stat. therefore, conclusion, that both guide us as to whether reading sense conforms to a common proof apply- and avoids the entire text of the statute ing 609.749. The term “inten- infirmity constitutional is that possibility of to define “conduct” in the tional” is used requires specific intent. The the statute of “harass” in subdivision definition Judges District Association cor- Minnesota innocent, accidental, clearly only prevent rectly specific intent as an element of defined negligent kinds of unintentional ac- or other stalking. the crime of See 10A Minn.Dist. Thus, tivity triggering from the statute. for Practice, Ass’n, Judges Minnesota CRIM- example, “repeatedly” if the defendant tele- (1995). If, however, JIG 24.57 number, wrong phones another but calls truly to be meant presumably no violation of Minn.Stat. crime, possesses it the means ame- 2(4) would occur because the present precision liorate the statute’s lack telephone the one did not intend to defendant clarifying by a amendment. intended to call called. But the defendant appeals court of The decision * * * “(1) reached, party and the calls remanded to the reversed and this case is person under the would cause a reasonable the ease was submitted trial court. Because oppressed, persecuted circumstances to feel jury with a mistaken instruction on the intimidated; causes reaction question of a new trial is ordered. part of victim” a violation of on the occurred, § 609.749 has without STRINGER, (dissenting). Justice had showing that the defendant further majority’s that Minn.Stat. The conclusion victim’s reac- specific the intent to cause the requires proof that the defendant clearly legislature has tion. That is what the op- the to feel intended to cause victim harassing and I see no reason established as intimidated, op- pressed, persecuted or as inject require- court to an additional for this proof intended to posed to that the defendant the proof specific ment of of intent to cause engage in conduct that caused the victim’s persecuted or oppressed, victim’s intimidated reaction, regardless the defendant of whether legislature had intended to reaction. If the reaction, specific had the intent to cause the intent, majori- specific as the require proof of is an unwarranted rewrite of a clear and concludes, ty simply it have inserted Further, unambiguous statute. it is based “intentionally” to” words or “with intent the constitutionality upon argument a that was key in subdivision before the word “causes” not raised in the lower courts and should not by court it is so that it would read: now be heard the because As caught 1 Definition. used in this sec- statute will scope Subd. not be its be- tion, to inten- person’s “harass” means of cause another unreasonable reac- conduct in a manner that: majority’s tional The “peculiar- tion. rewrite of the

ly peculiar, drafted” leads to its own ^{[*] [*] [*] [*]} puzzling and irrational result. (2) intentionally causes this reaction on finding requirement a specific of part of the victim. majority places heavy emphasis on the do supply It did not so and it is not ours listing to in subdivision 2 of Minn.Stat. the omitted words.1 § 609.749 of a of number activities that are criminalized in specific other statutes where Ironically, majority’s “pecu- reliance on required, is concluding legisla- that the drafting” justify liar to a rewrite to must ture have intended to require proof specific intent has created its specific intent because it references other outcome, peculiar own because now the state requires criminal specific conduct that only prove will not be to intent to I proof. analysis First, find misguided. intimidate; oppress, persecute or it must also reference to these criminalized activities re- prove hypothetical, person that a reasonable quiring omitting specific but react, would so and that did victim so intent as a proof in Minn. peculiar react. But the result about comes just Stat. to seems cut in legislative grafts the court’s because rewrite opposite majority urges direction the proof intent onto a statute that —that is, again it once legisla- underscores that the protective a already had device incorporated exactly doing ture knew what it was when it prevent application— it to its unwarranted required proof of specific respect intent with that the conduct must of a be nature to cause particular alone, to standing conduct without person a oppressed. reasonable to feel So victim, reference to a but not where anomaly left with we are of our courts statutory purpose protect exonerating those fully stalkers who intend i.e., victims, targets class persecute oppress, or intimidate their vic- cases, legis- conduct. In those tims, proof fails to the reasonableness enough lature deemed it the offensive protect the victims’ reaction? Are we to proof conduct had occurred where there was the stalker who to inflict victim intends on a act, coupled proof of intent to with that the consequences of the odious stalker’s oppressed conduct would have the reasonable preference duct interests of the person and it “op- caused the victim to feel may unreasonably victim who have those felt pressed, persecuted or intimidated.” consequences? It precisely seems this is avoiding what the was when it Second, the listed first offense in fact does simple statutory a clear established require specific intent: requiring proof framework of intent of by A who harasses another com- conduct, coupled proof with that a reasonable mitting any guilty acts person would have so reacted and the victim gross misdemeanor: respond, so in fact did to establish the crime stalking. of harassment and directly indirectly reasonable manifests standard acts as check to insure injure person, intentionally engaging that an actor property, in mild rights another degree otherwise covered commission of unlawful act. (a) go preced- 1. One need no further than the statute "Harassment” includes: ing example § (1) intrusive, Minn.Stat. to find of acts, 609.749 an repeated, or unwanted requiring proof numerous criminal statutes words, of gestures are intended to adverse- specific intent in Minnesota's criminal statutes. ly safety, security, privacy the anoth- affect of There the crime of "harassment” is defined as er, regardless relationship of the between the follows: * * target actor and the intended *. pur- Subdivision 1. Definition. For the (1994) added). § (emphasis Minn.Stat. 609.748 section, poses following of this the have terms meanings given the them in this subdivision. react, 609.749, actor has violated (emphasis add- victim does so the § Minn.Stat. ed). if employs trig- the conduct falls legislature the the Where any for of subdivi- language require intent within the seven sections gering Application per- it for anoth- of conduct but omits sion 2. of the “reasonable one course er, inappropriate for the particularly protects against criminalizing it con- seems son” test inject specific language. only unreasonably now court to duct that sensitive or harassing, paranoid victim would find Third, in prohibited conduct described truly innocent therefore the risk of defen- paragraph of Minn.Stat. falling dant within the ambit of Minn.Stat. by intent either clearly requires no Further, stalking is minimal. is a any other by terms or reference to its own personally conduct of such intrusive nature criminalizing the conduct: not all that it seems at unreasonable the by another com- person A who harasses to deem that those who any guilty acts is mitting of the subject activity to criminal such shall be gross misdemeanor: alone, prosecution because their conduct regard and without to the intended conse- ‡ n n n quence. person that a reasonable Proof engages other oppressed, perse- intimidated or would feel in- person another that interferes with by cuted the defendant’s conduct and that liberty. person’s privacy or trudes on the victim so reacted would seem to be suffi- the unambiguous that the defen- It is clear and proof cient that the defendant intended that triggers conduct alone dant’s reaction. upon consequence 609.749 based the Finally, majority’s the conclusion that it conduct, without similar subdivision general were to find regard to the defendant intended to whether might gratu- it unconstitutional is be upon victim. or intrude interfere with wholly No itous and seems unwarranted. provision majority would rewrite this trial question constitutional was raised at too, by adding presumably “with the intent and on that the court of court level basis to interfere or intrude.” appeals specifically provide declined to majority’s I take issue with the rea- also too decline stitutional review. We should soning needed that because the constitutional issue was review because activity only to list the to be criminalized trial court level and cannot not raised at the when it re- create a appeal. for the first time on State be raised it must quired proof of intentional conduct (Minn. 780, 784 Engholm, addition, have intended 1980). grave I doubts about have While I higher degree proof explicitly statute that so defines whether a support conclusion whatsoev- see no for this conduct, required proof of the offensive Raising specter that unless a re- er. is unconstitu- as does Minn.Stat. is read quirement proof vague, I tionally would consider issue charged one could be with an into the statute timely by appellant for failure to waived majority, stalking, as does the accidental court. raise it the trial why point misses the as to subdivision ap- I affirm the court of requires proof of intentional conduct would therefore clearly is peals. first instance. The focus obviously protecting the victim and it was COYNE, purpose to na- Justice.. legislature’s measure the conduct, by not

ture defendant’s join Stringer’s I Justice dissent. consequences, intended which defendant’s prove, by might frequently be difficult to ANDERSON, Justice. hypothetical how the reasonable join Stringer’s I dissent. Justice react to the defendant’s intended con- If response. the victim’s

duct

hypothetical op- reasonable would feel

pressed, persecuted or intimidated conduct, in fact

defendant’s intended notes constituting stalking; acts this list includes if, here, a court is confronted two types several of conduct which the differing possible constructions of portions has criminalized in other adopt option up must which the court

Case Details

Case Name: State v. Orsello

Court Name: Supreme Court of Minnesota

Date Published: Oct 31, 1996

Citation: 554 N.W.2d 70

Docket Number: C2-94-1435

Court Abbreviation: Minn.