State v. Hall, A15–1645.
| Decision Date | 05 December 2016 |
| Docket Number | No. A15–1645.,A15–1645. |
| Citation | 887 N.W.2d 847 |
| Parties | STATE of Minnesota, Respondent, v. Donald Joseph HALL, Jr., Appellant. |
| Court | Minnesota Court of Appeals |
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Richard G. Stulz, Lac Qui Parle County Attorney, Madison, MN, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Anders Erickson, Assistant Public Defender, St. Paul, MN, for appellant.
Considered and decided by JESSON, Presiding Judge; STAUBER, Judge; and REYES, Judge.
Appellant Donald Joseph Hall challenges his conviction of stalking under Minnesota Statutes section 609.749, subdivision 2(4), which defines stalking as repeatedly making phone calls, sending text messages, or inducing a victim to make phone calls, whether or not conversation ensues. Hall argues that this portion of the stalking statute is unconstitutionally overbroad in violation of the First Amendment. He also argues that there is insufficient evidence to support his conviction. Because subdivision 2(4) is neither unconstitutionally overbroad on its face nor as applied to Hall, and because there is sufficient evidence to support his conviction of stalking, we affirm.
According to testimony at trial, Hall and the victim, B.R., both lived in a small town in greater Minnesota. B.R. was the city clerk and treasurer who, among other duties, managed the billing for residential utilities. The two knew each other. When Hall initially moved into town, B.R. invited him over for the holidays because he did not have family in town.
The town had problems with its water-meter reader, and it would occasionally overcharge residents for their usage. Hall complained to B.R. when he received several inaccurate water bills in 2013 and 2014. In an unrelated matter, in early August 2014, Hall's tomato and corn plants in his garden had been cut down, but the police department was not able to locate the responsible party; again, Hall complained to B.R.
On the evening of August 26, 2014, Hall had trouble falling asleep. He started looking through his bills and noticed that one of them was actually addressed to the city's post office. Thinking that B.R. was making him pay for the post office's bill, Hall made five calls to the city hall's telephone number over the course of one hour in the middle of the night. The five voicemails he left for B.R. are at the heart of this case.
Hall's first voicemail began with complaints about the mistreatment of neighborhood dogs. As the voicemail continues, his tone became increasingly hostile. He says that “this bullsh-t is going to come to an end.” He tells B.R. that she is “done” and that the locals are waiting for someone like him to “step up to the plate and swing the bat.” He adds, “Your bullsh-t is about to end.” He then described rumors about how B.R. was kicked out of her house for being immoral and how her family had killed a man. He says that “things are going to happen around here real quick, real quick, all done.” He ends the voicemail by insulting B.R.'s husband as a “fat mother f-cker.” The first voicemail is 3 minutes and 25 seconds long and includes more than 20 expletives. In his second voicemail, made 16 minutes later, Hall insults B.R.'s intelligence and that of other people in town. He advises, “You don't wanna [sic] mess with me.” He said, “I'm not from around here, but my peoples back there in the cities are going to make it happen.” He ends this voicemail by telling her that it is “time for a wakeup call.”
Hall left a third voicemail half an hour later. He told B.R. to resign the next day. He repeatedly warns her, “Don't test me, don't, just resign.” He said that this is not a joke. He tells B.R. that State Auditor Rebecca Otto is now investigating B.R. and the town. He threatens physical violence against a neighbor, He says his neighbor is Again, he demanded that she resign, that she's “done.” He tells B.R., He warns, “Don't play games with me.” He ends the voicemail with, “You're gone, [B.R.], gone.”
Several minutes later, in a fourth voicemail, Hall complains about the neighborhood dogs. In his fifth call, Hall again calls B.R. more insulting names and recommends that she call Rebecca Otto. He tells her to resign again, saying “You're all done.” He calls her husband a “fat f-cking pig” and demands that she “get the f-ck out of our town.”
The following morning, B.R. arrived at her office and listened to the messages. B.R. called the police, and Hall was charged with stalking for repeatedly making telephone calls, knowing that the conduct would cause the victim to feel frightened, threatened, persecuted, oppressed, or intimidated and, in fact, causes this reaction. See Minn.Stat. § 609.749, subds. 1, 2(4) (2014). Before trial, Hall moved to dismiss the charge for a lack of probable cause and on the ground that his voicemails were protected speech. The district court denied his motion, concluding that the voicemails were not protected speech and there was sufficient probable cause to support the charge.
At trial, B.R. testified that she was shocked and terrified because of the sound of his voice and the names she was called. She believed the voicemails were a definite threat because Hall repeatedly said she was “done.” After a jury trial, Hall was found guilty and sentenced to 37 months in prison.1 This appeal follows.
Minnesota enacted its stalking statute in 1993, as an increasing number of stalking incidents resulted in high-profile, tragic murders across the country. 1993 Minn. Laws, ch. 326, art. 2, § 22 (codified at Minn.Stat. § 609.749 (1994) ); see State v. Orsello, 554 N.W.2d 70, 71 (Minn.1996) (), superseded by statute on other grounds, Minn.Stat. § 609.749, subd. 1a (1998) ; see also Cassandra Ward, Minnesota's Anti–Stalking Statute: A Durable Tool to Protect Victims from Terroristic Behavior, 12 J.L. & Ineq. 613, 633–34 (1994) (). While the practice of stalking is centuries old, the crime itself is relatively new. Unlike crimes such as assault and battery, the crime of stalking did not exist at common law. 2 Wayne R. LaFave, Substantive Criminal Law § 16.4 (2d ed.2016). But as stalking became an escalating social problem in the 1990s, both state and the federal governments reacted. Id. They sought to provide law enforcement with a means to intervene before a stalker's actions resulted in injury or threat of death. Id.
Stalking is now a statutory crime in all 50 states, and interstate stalking is a federal crime. See id. at n. 5 ().2
These statutes addressed a troubling gap: the criminal justice system could not prosecute an individual whose conduct fell between harassment and terroristic threats. Karen A. Brooks, The New Stalking Laws: Are They Adequate to End Violence?, 14 Hamline J. Pub.L. & Pol'y 259, 259 (1993).
For a person to be convicted under Minnesota's stalking statute, the state must prove beyond a reasonable doubt that the individual engaged in conduct that the actor knows or has reason to know would cause the victim to feel frightened, threatened, persecuted, oppressed, or intimidated. Minn.Stat. § 609.749, subd. 1. The conduct must also cause the victim to feel stalked; i.e., frightened, threatened, oppressed, persecuted or intimidated.Id. The statute then describes what conduct provides the basis for the crime of stalking; for example, repeatedly sending letters, following another person, or making a person's telephone continuously ring. Id., subds. 2(2), (5)–(6) (2014). The type of conduct at issue here is repeatedly making telephone calls, regardless of whether a conversation ensues. Id., subd. 2(4).
Hall challenges his conviction under Minnesota Statutes section 609.749, subdivision 2(4), arguing that it is unconstitutionally overbroad on its face and as applied because it restricts his First Amendment right of free speech. The constitutionality of a statute presents a question of law, which we review de novo. State v. Bussmann, 741 N.W.2d 79, 82 (Minn.2007). A statute that restricts First Amendment rights is not presumed constitutional. State v. Botsford, 630 N.W.2d 11, 15 (Minn.App.2001), review denied (Minn. Sept. 11, 2001). But “our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989).
To address Hall's constitutional challenge, we first address whether the statute is unconstitutionally overbroad on its face. To do so, we initially examine whether subdivision 2(4) of the stalking statute implicates the First Amendment. If it does, we must determine whether it prohibits constitutionally protected activity in a substantial number of its applications. We then analyze whether the statute is unconstitutional as applied to Hall's conduct. Finally, we consider Hall's pro se argument that there is insufficient evidence to support his conviction. We address each issue in turn.
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