Opinion
No. C7-97-117.
Filed July 29, 1997.
Appeal from the District Court, Itasca County, File No. K1-95-1939.
Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, Lisa Weagant, Certified Student Attorney, (for respondent).
John J. Muhar, Itasca County Attorney, Bernard Bodien, Assistant County Attorney, (for respondent).
Gerald C. Magee, James Jay Rennicke, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Jerald Ambert Meyer challenges his conviction and sentence on two counts of gross misdemeanor harassment under Minn. Stat. § 609.749, subd. 2(7) (1994). Because (1) the evidence was sufficient to support the verdict, (2) the court's evidentiary rulings did not unduly restrict Meyer's ability to present a defense, and (3) the consecutive sentences imposed were authorized, we affirm. We further grant respondent's motion to strike a paragraph of appellant's brief.
DECISION I.
Sufficiency of the Evidence
Where there is a challenge to the sufficiency of the evidence, an appellate court is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). "A jury normally is in the best position to evaluate circumstantial evidence, and * * * their verdict is entitled to due deference." Id at 430.
Appellant was convicted of gross misdemeanor harassment involving his then-estranged wife, Lori Meyer, and appellant's former friend, Dean Salisbury. Appellant contends the evidence was insufficient to sustain his conviction because he lacked specific intent to harass the victims and merely acted with intent to prevent a crime. Harassment is defined as intentional conduct * * * that:
(1) would cause a reasonable person under the circumstances to feel oppressed, persecuted, or intimidated; and
(2) causes this reaction on the part of the victim.
Minn. Stat. § 609.749, subd. 1 (1994). Harassment is a gross misdemeanor if the conduct "interferes with another person or intrudes on that person's privacy or liberty." Id. , subd. 2(7). Further, the harasser must act with specific intent, defined as "the intention to produce a specific result." State v. Orsello , 554 N.W.2d 70, 72 (Minn. 1996) (emphasis omitted).
After personal conflicts with appellant, Lori Meyer took up residence in Salisbury's home. Over the course of three days in September 1995, appellant trespassed at Salisbury's residence, verbally confronted and threatened to kill Salisbury, and took photographs of Salisbury and Lori Meyer. On the evening of his arrest, appellant broke into Salisbury's home after observing, from a nearby hill, through an upstairs window, Lori Meyer and Salisbury engaged in sexual relations. When appellant entered the bedroom where Salisbury and Lori Meyer were, Salisbury shot and wounded appellant.
At trial Lori Meyer denied that she was harassed. However, after appellant's arrest, Lori Meyer told Deputy Gregg Deutsch that appellant was ruining her life. Appellant's statements at the time of arrest also showed the required specific intent. Deputy John Rubesh overheard appellant say to Lori Meyer, "I told you I'd get you." Additionally, prior to this incident, appellant had spoken with police about his wife's involvement with Salisbury and was advised not to enter Salisbury's residence without permission. Appellant's conduct following this warning, combined with his statements, demonstrates the specific intent necessary for this crime. See Orsello , 554 N.W.2d at 72.
We conclude that the evidence is sufficient to support the verdict. See State v. Wallace , 558 N.W.2d 469, 472 (Minn. 1997) (setting out standard of review for sufficiency of the evidence claims). The evidence showed that a reasonable person in either Salisbury or Lori Meyer's position would have felt oppressed, persecuted, or intimidated and that appellant's harassment intruded on their privacy and liberty.
II.
Ability to Present a Defense
Appellant claims that the trial court improperly limited his ability to present a defense. Criminal defendants have the right to be "afforded a meaningful opportunity to present a complete defense." State v. Richards , 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta , 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984)). This right "includes the opportunity to develop the defendant's version of the facts, so the jury may decide where the truth lies." State v. Crims , 540 N.W.2d 860, 865 (Minn.App. 1995) (citations omitted), review denied (Minn. Jan. 23, 1996). Specifically, appellant wanted to present evidence that (1) Lori Meyer is an alcoholic, (2) she had made numerous prior police reports, (3) Salisbury's former girlfriend had initiated a restraining order against him, (4) Salisbury was subject to a "no-drink" order, and (5) Salisbury was being treated by a psychologist.
First, nearly all of this evidence was presented in some form to the jury through the testimony of either Lori Meyer or appellant. Thus, any justification for appellant's behavior on the theory that he was preventing a crime or protecting his wife was fully presented to the jury. Second, the trial court did not abuse its discretion in excluding evidence of Salisbury's psychological treatment and Lori Meyer's "erroneous police reports." This evidence was either irrelevant or its "prejudicial effect outweigh[ed] its probative value." Id. at 866. We note that, to appellant's benefit, the court also excluded as prejudicial evidence that appellant had previously assaulted his wife. Under these circumstances, we conclude that appellant was able to present evidence that was material and favorable to his theory of the case.
Appellant's claim that "[t]he tone and inflection of the trial court was disparaging of the defense" and had a chilling effect on the defense is also without merit. The trial court cautioned defense counsel against attempting to introduce evidence the court had previously ruled inadmissible. Because defense had ignored the court's prior rulings, the court's warning that it could require defense counsel to pay mistrial costs was reasonable. III. Sentencing
The trial court did not abuse its discretion in imposing a one-year executed sentence for appellant's offense against Salisbury and a one-year consecutive sentence with all but 90 days suspended for appellant's offense against Lori Meyer. See State v. Cole , 542 N.W.2d 43, 53 (Minn. 1996) (citation omitted) ("district court has discretion to impose one sentence per victim" if sentence "does not exaggerate the criminality of the defendant's conduct"). Although no other Minnesota appellate court has reviewed the propriety of imposing consecutive sentences for harassment, we conclude that appellant's conduct merits the sentence imposed. Appellant entered Salisbury's residence on three consecutive days without permission, threatened to kill Salisbury, and took photos of the victims in the home. Appellant's conduct on the evening of his arrest unnecessarily included breaking into the residence by smashing a sliding glass door. Appellant's sentence did not exaggerate the criminality of his conduct.
IV.
Motion to Strike Portion of Appellant's Brief
Appellant agreed at oral argument that the last paragraph on page 12 of his brief referred to materials outside the trial court record. We strike this portion of the brief. See Minn.R.Crim.P. 28.02, subd. 8; State v. Hanson , 366 N.W.2d 377, 379 (Minn.App. 1985). Affirmed; motion granted.
At oral argument appellant also challenged certain jury instructions. Because this issue was neither raised nor briefed by appellant and because respondent objected to it being raised at oral arguments, we decline to address it on appeal. See State v. Scruggs , 484 N.W.2d 21, 24 n. 1 (Minn. 1992) (failure to address claim in criminal case deems it waived).