RADERv.MIHO

Minnesota Court of AppealsJul 6, 1999
No. C3-98-1937 (Minn. Ct. App. Jul. 6, 1999)

No. C3-98-1937.

Filed July 6, 1999.

Appeal from the District Court, Ramsey County, File No. C498100424.

Della M. Rader, (pro se respondent)

Lajos John Miho, (pro se appellant)

Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Schultz, Judge.

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.


This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).


UNPUBLISHED OPINION


Pro se appellant Lajos Miho seeks review of a harassment restraining order entered against him. He alleges that the district court's findings are not supported by the evidence in the record and that the court erred in allowing respondent Della Rader to testify on behalf of her son. Because the evidence supports issuance of the order and there is no reversible error in the court's evidentiary ruling, we affirm.

FACTS

Appellant Lajos Miho and Linda Chapman were divorced in November 1997. Chapman obtained an order for protection against Miho in 1997 and an ex parte order for protection on August 6, 1998.

Respondent Della Rader and Chapman are sisters. Since approximately August 1997, Rader and her son, P.R., have lived with Chapman in Maplewood, Minnesota. Miho lives in Grand Rapids, Minnesota.

On August 6, 1998, Rader made a motion on behalf of herself and P.R. for a temporary harassment restraining order against Miho. She alleged Miho was harassing and stalking her and P.R. because Miho blamed her for breaking up his marriage with Chapman. The temporary order was granted.

Pursuant to Minn. Stat. § 609.748, subd. 4(c), there was an evidentiary hearing on the issuance of the harassment restraining order. At the hearing, Chapman and Rader testified to four incidents of harassment. They testified that on November 1, 1997, Miho came to Chapman's residence to pick up his belongings which had been stored in Chapman's trailer. They stated that while Miho was picking up his belongings, he threatened Rader saying, "You're not dead yet? We'll see about that." He also told Chapman he would "get her" one way or another, whether it was through her sister or her sister's son.

According to Rader and Chapman, the next incident occurred in mid-June 1998. They testified that when P.R. was walking home, a man rode his motorcycle up and down the street where P.R. was walking. The man then stopped at the intersection and waited. When P.R. passed him, the man addressed P.R. by name, and P.R. recognized him as Miho. P.R. was frightened, ran home, and related the incident to Chapman and Rader.

Rader and Chapman next testified that Rader saw Miho parked on the street at the end of the driveway in front of their house on July 2, 1998. Miho gave Rader a dirty look and drove away.

The final incident occurred on August 3, 1998. Chapman and Rader testified that they were having breakfast at a restaurant when Miho entered the restaurant with his family. According to Rader and Chapman, Miho got up from his table, passed by their table, and made threatening faces.

Miho's testimony differed significantly from that of Rader and Chapman. He denied making threatening remarks to Rader on November 1, 1997. Miho's girlfriend and father, who were present at the time, both testified they did not see or hear Miho make any remarks to Rader. They did not, however, accompany Miho into Chapman's garage where Radar alleges the statements were made.

Miho also denied being in St. Paul in June or July. Miho's girlfriend confirmed this testimony. Miho's girlfriend and father also testified that Miho was in Grand Rapids on July 2 and they were planning a large party. Additionally, Miho had several friends testify that he called them from Grand Rapids on July 2 and invited them to the party. To prove he had been at home on July 2, Miho admitted his telephone bills for June and July and carbon copies of his checks.

Miho's friend, Ed Guy, testified that Miho stored his motorcycle at Guy's home in St. Paul. Guy indicated that when Miho stored the motorcycle at his house, Guy occasionally rode it past Rader and Chapman's home.

Based on the testimony at the hearing, the court found that Miho had "made threats to harm Rader and Rader's child in November 1997, and that Miho was stalking or following Rader or Rader's child in June or July 1998." The court ordered Miho to have no contact with Rader or Rader's child until September 24, 2000, and to stay away from Rader's residence. This appeal followed.

DECISION

This court reviews harassment restraining orders under an abuse-of-discretion standard. See Anderson v. Lake , 536 N.W.2d 909, 911 (Minn.App. 1995) (applying caselaw construing domestic abuse act to harassment statute); Mechtel v. Mechtel , 528 N.W.2d 916, 920 (Minn.App. 1995) (detailing district court's discretion to grant relief under domestic abuse act).

A district court may issue a harassment restraining order if it "finds * * * reasonable grounds to believe that the respondent has engaged in harassment." Minn. Stat. § 609.748, subd. 5(3) (1996). "Harassment" in this context, includes

repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.

Minn. Stat. § 609.748, subd. 1(a)(1) (1996).

1. Abuse of discretion

Miho argues that the district court's findings are not supported by the evidence in the record, and that the court did not consider the evidence he submitted. We disagree.

Rader and her sister testified to four specific incidents of harassment and Miho denied them. It is implicit in the court's findings that it believed Rader and Chapman, and did not believe Miho and the witnesses he called.

Moreover, the telephone records and check stubs Miho presented to demonstrate he was not in St. Paul in June and July are not conclusive. They merely show phone calls were made from his residence during June and July; they do not show who made those calls.

Similarly, the check carbons give no indication of where the stores are located or the time of day the checks were written. There is also no assurance the dates on the checks are accurate. In his appellate brief, Miho submitted the names and addresses of the stores the checks were written to. This evidence, however, was not before the trial court and will not be considered on appeal. See Minn.R.App.P. 110.01 (stating the appellate record consists of "[t]he papers filed in the trial court, the exhibits and the transcript").

In light of the deference we give to the district court's determinations of witness credibility, the record supports the district court's finding that Miho harassed and stalked Rader and her son. See Boniek v. Boniek , 443 N.W.2d 196, 198 (Minn.App. 1989) (holding "[p]ast abusive behavior, although not dispositive, is a factor in determining cause for protection"); Minn.R.Civ.P. 52.01 (the appellate court gives due deference to the opportunity of the trial court to observe the witnesses and weigh their credibility).

2. Hearsay evidence

Miho also contends the district court erred in allowing Rader and Chapman to testify about the motorcycle incident involving P.R. and Miho. This appears to be an objection to the admission of hearsay.

Minn.R.Evid. 802 prohibits the admission of hearsay evidence except as provided in the rules of evidence. But we conclude the statements made by P.R. fall within the excited utterance exception to the hearsay rule. See Minn.R.Evid. 803(2) (providing for admission of statement about a "startling event or condition" made while the declarant was under stress due to that event or condition); State v. Edwards , 485 N.W.2d 911, 914 (Minn. 1992) (holding child's comments to 911 operator admissible as excited utterance); Daniels , 380 N.W.2d at 777, 782-83 (Minn. 1986) (allowing admission of excited utterance by children despite ruling children were incompetent to testify). The district court did not, therefore, abuse its broad discretion by allowing Rader and Chapman to testify to the events Phillip saw and heard.

Accordingly, we conclude the district court did not err in finding reasonable grounds to hold Miho engaged in harassment.

Affirmed.