Opinion
No. C1-02-825.
Filed April 15, 2003.
Appeal from the Morrison County District Court, File No. C1-02-825.
John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, (for appellant)
Mike Hatch, Attorney General, and Conrad Freeberg, Morrison County Attorney, Kathleen M. Tracy, Assistant County Attorney, Government Center, (for respondent)
Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this appeal from a conviction of gross misdemeanor violation of an order for protection, Minn. Stat. § 518B.01, subd. 14(c) (Supp. 2001), appellant argues that the evidence is insufficient to convict him because the order for protection allowed him to have telephone contact with his children. We affirm.
FACTS
On June 19, 2000, the district court issued an order for protection (OFP), prohibiting appellant Joey James Varner from having contact with his estranged wife, Diane Varner, and their children, except by "telephone for purposes of contacting [their three] children." The district court amended this OFP on August 7, 2000, eliminating the exception for telephone contact, and providing that appellant shall have no contact with his estranged wife and their children, except that appellant "may have contact with [their] children during scheduled visits. The children may have contact with respondent." In September 2000, appellant made several calls to Ms. Varner's home and was convicted of misdemeanor violation of the OFP on February 21, 2001. That conviction is not the subject of this appeal.
After a hearing on June 18, 2001, the district court extended the original June 19, 2000, OFP, providing that "[i]ssues of visitation and contact with the children defer to the dissolution file." The operative provisions in the dissolution file regarding visitation established that
[appellant] shall be allowed telephone contact with the children who wish to speak with him, on two occasions per week between 6:00 p.m. and 9:00 p.m., which phone calls need not be supervised. At all times during those telephone conversations, [appellant] shall not interrogate any of the children regarding their mother's activities, and he shall not disparage or speak negatively about the other parent with the children or allow others to do so.
On August 3, 2001, appellant's youngest daughter called appellant to tell him she would not be able to see him on Sunday, because she had been accepted at Bible camp. The next day appellant left the following message on his wife's answering machine:
You are a phony, Diane. You're right there. You got you son-of-a-b*tch*n' caller ID sh*t. God, [appellant's daughter] better be there tomorrow at noon. If she's not, I'm calling the Sheriff's Department and my lawyer and your little a*s will be in trouble. Wake up, phony.
Ms. Varner did not retrieve this message until Sunday, August 5. She called the police the next day. A deputy came to Ms. Varner's home and listened to the message. The deputy then located appellant at his place of employment and arrested him.
Appellant was charged with gross misdemeanor violation of an order for protection, in violation of Minn. Stat. § 518B.01, subd. 14(c) (Supp. 2001). Appellant waived his right to a jury trial and agreed to submit the case to the district court on stipulated facts. The district court found appellant guilty of the charged offense. This appeal followed.
DECISION
As an initial matter, we must address the posture in which this case is presented on appeal. The record is unclear as to whether the case was submitted to the district court on stipulated facts pursuant to Minn.R.Crim.P. 26.01, subd. 3, which permits appellant to "raise issues on appeal the same as from any trial to the court," or whether the case was submitted on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), which preserves only pretrial issues for appellate review and thereby precludes a sufficiency-of-the-evidence challenge. State v. Busse, 644 N.W.2d 79, 88-89 (Minn. 2002) (explaining that to challenge state's proof of elements, defendant must proceed "to trial and argue to a factfinder that the state had not proven all the elements of the charge instead of stipulating to the state's case"). If the parties employed the Lothenbach procedure, appellant effectively waived the right to challenge the sufficiency of the evidence. Although the state contends, without dispute from appellant, that "the case was submitted on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854," our review of the record indicates that appellant anticipated an appeal on the sufficiency of the evidence at the time he agreed to a trial on stipulated facts. Importantly, neither party referenced the Lothenbach procedure at trial. The parties neither briefed nor argued the waiver issue. Because the record is unclear as to this issue, in the interests of fair and due process, we address the merits of appellant's claim.
When reviewing a claim of insufficient evidence, this 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 district court to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A district court judge's decision as a factfinder is given the same weight as a jury verdict. State v. Waterston, 371 N.W.2d 650, 652 (Minn.App. 1985). We must assume the factfinder believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the factfinder, 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).
The state has the burden of proving each element of the charged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071 (1970). The elements of gross misdemeanor violation of an order for protection are (1) there was an existing court order for protection; (2) the defendant knew of the order; (3) the defendant violated a term or condition of the order for protection; and (4) the defendant committed this crime within five years of the defendant's previous conviction of violation of an order for protection. Minn. Stat. § 518B.01, subd. 14(a), (c) (Supp. 2001); State v. Colvin, 629 N.W.2d 135, 138 (Minn.App. 2001) (stating that "[t]he state is required to prove the existence, and defendant's awareness, of the order for protection, in addition to a violation of the order.") rev'd on other grounds, 645 N.W.2d 449 (Minn. 2002). Appellant stipulated that, "[o]n August 4, 2001, he knew an OFP forbidding contact [with] Ms. Varner was in effect." He also stipulated that he had been convicted on February 21, 2001, of violation of an order for protection. Thus, the sufficiency of evidence as to three of the four elements of the offense is not in dispute.
Appellant argues that the state failed to prove beyond a reasonable doubt that he violated a condition of the OFP, because he had permission to contact his children. This argument fails, however, because appellant's message was left for his wife, not their children. The OFP forbids appellant from contacting his wife, except for the purpose of contacting their children. In his message, appellant contacted, disparaged, and threatened his wife, in violation of the amended June 19, 2000, OFP, which was in effect. Accordingly, we conclude that the evidence is sufficient to sustain the conviction.
Even if appellant's message were intended for his daughter, it still violates the OFP. The OFP defers to the dissolution file to set the conditions for appellant's contact with his children. The conditions prohibit appellant from making disparaging and negative comments about his wife to the children. Thus, appellant's argument affords him no relief from conviction.