State v. Orsello, C2-94-1435

• Decision Date: 12 September 1996
• Docket Number: No. C2-94-1435,C2-94-1435
• Citation: 554 N.W.2d 70
• Parties: STATE of Minnesota, Respondent, v. Paul Edward ORSELLO, petitioner, Appellant.
• Court: Minnesota Supreme Court

Page 70

554 N.W.2d 70

STATE of Minnesota, Respondent, v. Paul Edward ORSELLO, petitioner, Appellant.

No. C2-94-1435.

Supreme Court of Minnesota.

Sept. 12, 1996.

As Amended on Grant of Rehearing Oct. 31, 1996.

Syllabus by the Court

The use of language indicative of specific, rather than general, intent and of language consistent with similar specific intent crimes, demonstrates that stalking is a specific intent crime. Minn.Stat. § 609.749 (1993). Canons of statutory construction requiring that statutes be read so that no portion of the statute is superfluous and so as to avoid any interpretation of a statute that renders it unconstitutional, further buttress our conclusion.

John M. Stuart, State Public Defender, Cynthia Jokela, Special Assistant Public Defender, Fredrikson & Byron, P.A., Minneapolis, Kimberly J. Nordby, Special Assistant Public Defender, Minneapolis, for Appellant.

Hubert H. Humphrey, III, Attorney General, James B. Early, Assistant Attorney General, St. Paul, James T. Reuter, Chisago County Attorney, Center City, for Respondent.

Heard, considered and decided by the court en banc.

OPINION

GARDEBRING, Justice.

The appellant in this case, Paul Edward Orsello, appeals from his conviction under Minnesota's "stalking" statute, Minn.Stat. § 609.749 (1993). Orsello argues that the statute is ambiguous as to the level of intent required to convict him and that the statute should be read to require specific intent. In the alternative, Orsello asserts that if the statute is construed to require only general intent, then it is unconstitutionally "void for vagueness." The court of appeals agreed with the trial court that the language of the statute required only general rather than specific intent, as an element of the crime. We conclude that conviction under the statute requires proof of specific intent and therefore reverse.

Paul and Diane Orsello were married for over nine years, but were divorced in 1992. Diane Orsello received custody of their three children. Appellant was granted visitation and the right to phone his children on certain days of the week. However, the record reflects that he continued to contact his wife and children frequently via the phone and in writing. Often appellant suggested reconciliation, or at least social contact, with his former wife. While the tenor of these contacts was often affectionate, sometimes appellant was threatening or angry. On one occasion, appellant showed his ex-wife a gun, stating he hoped "it wouldn't go off," and later told her she could "burn in hell."

Diane Orsello sought and received a harassment restraining order in June 1992, prohibiting appellant from contact with his family in any manner other than that allowed by a previous court order. Repeated contacts with his family resulted in his conviction for violating the harassment order in 1993. His contact with his wife and children continued and, based on incidents occurring from June to October 1993, he was charged with stalking under Minn.Stat. § 609.749 (1993).

There was some confusion at trial regarding whether stalking was a specific or general intent crime. Initially, the parties and the trial court assumed that specific intent was required and, therefore, that the prosecution had to prove appellant intended to stalk his wife. The trial court thus allowed the admission of appellant's conviction for violating the harassment order, as Spreigl evidence on the issue of intent. ¹ After the close of evidence, however, the trial court concluded that only general intent was required and remarked that the prosecution had failed to prove specific intent. ² The trial court therefore modified the model jury instruction for the stalking statute, which stated that specific intent was an element of this crime, to require only general intent. ³ See 10A Minn.Dist. Judges Ass'n, Minnesota Practice, CRIMJIG 24.57 (1995).

On appeal, the court of appeals affirmed appellant's conviction, agreeing with the trial court on the issue of intent and relying on the canons of statutory construction and on the absence of statutory language the legislature had previously indicated it would use to designate specific intent crimes. State v. Orsello, 529 N.W.2d 481, 484 (Minn.App.1995); see Minn.Stat. § 609.02 (1994).

The crime of stalking is new and has no precise analogue in common law. Following the 1989 murder of a television actress by an obsessed fan, many state legislatures enacted statutes criminalizing stalking. However, because the crime of stalking is a new legislative creation, there is, at present, no widely accepted legal definition for it. ⁴ Generally speaking, stalking encompasses predatory behavior directed usually at a specific individual. A stalker will engage in repeated behavior, sometimes seemingly benign, sometimes threatening, which nonetheless frightens and intimidates his or her victim. Stalking statutes typically offer injunctive relief in the form of either a protective or a restraining order. In addition, many of these statutes criminalize repeated, willful, malicious conduct directed at a specific person that actually alarms, annoys, or harasses that person. ⁵

Minnesota enacted its anti-stalking legislation in 1993 amid publicity surrounding incidents of stalking behavior which resulted in murder. See Cassandra Ward, Note, Minnesota's Anti-Stalking Statute: A Durable Tool to Protect Victims from Terroristic Behavior, 12 Law & Ineq.J. 613, 633-34 (1994) (describing the events leading up to Minnesota's adoption of the statute). The stalking statute, under which appellant was convicted, reads as follows:

Subd. 1. Definition. As used in this section, "harass" means to engage in intentional conduct in a manner 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.

Subd. 2. Harassment and stalking crimes. A person who harasses another by committing any of the following acts is guilty of a gross misdemeanor:

(1) directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act;

(2) stalks, follows, or pursues another;

(3) returns to the property of another if the actor is without claim of right to the property or consent of one with authority to consent;

(4) repeatedly makes telephone calls, or induces a victim to make telephone calls to the actor, whether or not conversation ensues;

(5) makes or causes the telephone of another repeatedly or continuously to ring;

(6) repeatedly uses the mail or delivers or causes the delivery of letters, telegrams, packages, or other objects; or

(7) engages in any other harassing conduct that interferes with another person or intrudes on the person's privacy or liberty.

Minn.Stat. § 609.749 (1993).

In this case, the issue is whether the stalking statute defines a crime of "general intent" or a crime of "specific intent." The meaning of the word "intent" in criminal law is, given its use in so many similar terms, at the very least, confusing. A criminal state of mind, or a criminal intent, is, of course, a necessary element of any crime having its origin in common law. See Wayne R. LaFave, Substantive Criminal Law, § 3.5(e) (1986). If the legislature chooses not to include an intent requirement in a statutory crime, one is implied as a matter of law. State v. Charlton, 338 N.W.2d 26, 30 (Minn.1983) (citing United States v. United States Gypsum Co., 438 U.S. 422, 436-37, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978)).

Two types of intent exist, specific and general. General intent requires only that the defendant engaged intentionally in specific, prohibited conduct. State v. Lindahl, 309 N.W.2d 763, 766 (Minn.1981). In contrast, specific intent requires that the defendant acted with the intention to produce a specific result, such as is the case in premeditated murder. Charlton, 338 N.W.2d at 30; LaFave, supra, at § 3.5(a).

When legal scholars developed the Model Penal Code, they sought to ameliorate the confusion inherent in the concept of "intent" and adopted a four part delineation of intent, replacing the general intent/specific intent dichotomy. See Minn.Stat. § 609.02, subd. 9 (1965). The Model Penal Code divides intent into four concepts: purpose, knowledge, negligence, and recklessness. Model Penal Code § 2.02 (1962). When the Minnesota legislature drafted its current criminal code in 1963, it borrowed from the Model Penal Code when it set forth the following guidelines as to how it would henceforth designate criminal intent:

(1) When criminal intent is an element of a crime in this chapter, such intent is indicated by the term "intentionally," the phrase "with intent to," the phrase "with intent that," or some form of the verbs "know" or "believe."

(2) "Know" requires only that the actor believes that the specified fact exists.

(3) "Intentionally" means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result. In addition, except as provided in clause (6), the actor must have knowledge of those facts which are necessary to make the actor's conduct criminal and which are set forth after the word "intentionally."

(4) "With intent to" or "with intent that" means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.

Minn.Stat. § 609.02, subd. 9 (1994). Thus, when this court seeks to interpret a criminal statute to determine the level of intent required for culpability under the statute, we must first turn to the above statutory guide. See, e.g., State v. Raymond, 440 N.W.2d 425, 426 (Minn.1989).

Appellant presents two arguments that Minnesota's stalking statute requires specific intent, one based on the unusual drafting of the statute and the...