In re A.J.B., A17-1161

• Decision Date: 09 April 2018
• Docket Number: A17-1161
• Parties: In the MATTER OF the WELFARE OF: A.J.B., Child
• Court: Minnesota Court of Appeals

910 N.W.2d 491

In the MATTER OF the WELFARE OF: A.J.B., Child

A17-1161

Court of Appeals of Minnesota.

Filed April 9, 2018

John Arechigo, Arechigo & Stokka, P.A., St. Paul, Minnesota (for appellant A.J.B.)

Lori Swanson, Attorney General, St. Paul, Minnesota; and Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, Minnesota (for respondent state of Minnesota)

Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Ross, Judge.

OPINION

WORKE, Judge

Appellant argues that his adjudications for stalking and harassment must be reversed because (1) Minn. Stat. §§ 609.749, subd. 2(6), and .795, subd. 1(3), are unconstitutionally overbroad both facially and as applied, and (2) the evidence was insufficient to prove his guilt beyond a reasonable doubt. We affirm.

FACTS

In March 2016, high school students, W.K., B.L., and appellant A.J.B., discussed that M.B., a fellow student who had been diagnosed with autism and ADHD, had recently posted some tweets discussing girls at school. B.L. and A.J.B. told W.K. that they wanted to post materials on M.B.’s Twitter page to elicit a "negative response." A.J.B. created a Twitter account with no identifying information called "Jeb Bush’s Guac Bowl." A.J.B. then began tweeting messages tagging M.B.’s account over two to three hours, with several referring to autism. One post contained a sign saying "Autistic Children Play Here" with a caption reading "Meanwhile at [M.B.]’s Daycare." Another post contained a checkerboard of images with M.B.’s face and a caption reading "Click the Autistic Child." Another post encouraged M.B. to "try a new cologne called ‘Anthrax.’ " One post encouraged M.B. to "consider suicide," while another contained an image stating "Consider the following" with a picture of a person holding a Clorox Bleach bottle. A.J.B. also posted an image of Pepe the Frog, "a known hate symbol," hanging by the neck on a rope.

Several days later, the tweets came to the attention of the high school’s dean of students. She spoke to M.B. and asked if he had seen anything online that made him concerned. M.B. told her that he had not checked his Twitter account for several days. After the dean of students investigated and learned that W.K., B.L., and A.J.B. were involved, she spoke to A.J.B., who admitted to posting the tweets.

Later that afternoon, when M.B. looked at the tweets, he immediately became upset and cried. M.B. testified that the tweets made him want to commit suicide and that he held a knife near his chest. M.B. decided not to commit suicide and called his mother. M.B. testified that when he returned to school, he was afraid that someone was going to attack him. M.B.’s mother took him to see a psychiatrist and a social worker because she was afraid that M.B. would try to hurt himself.

A.J.B. was charged with gross-misdemeanor stalking and misdemeanor harassment. A.J.B. moved to dismiss, but the district court denied the motion, ruling that the stalking and harassment statutes were constitutional, both facially and as applied to A.J.B. The state later amended the juvenile petition, adding the charge of felony stalking because of disability.

After a trial, the district court concluded that the state proved each count of the petition beyond a reasonable doubt. The district court adjudicated A.J.B. delinquent on the gross-misdemeanor stalking and misdemeanor harassment charges, but stayed adjudication on the felony stalking charge. This appeal followed.

ISSUES

I. Did the district court err by determining that the stalking and harassment statutes were not facially overbroad?

II. Did the district court err by determining that the stalking and harassment statutes were not overbroad as applied to appellant’s specific conduct?

III. Did the district court fail to hold the state to its burden of proof?

IV. Was the evidence sufficient to support the district court’s finding of guilt on the felony stalking charge?

ANALYSIS

First Amendment

A.J.B. argues that the stalking and harassment statutes are unconstitutionally overbroad, both facially and as applied to his conduct.¹ This court reviews the constitutionality of a statute de novo. State v. Bussmann , 741 N.W.2d 79, 82 (Minn. 2007). While statutes that restrict First Amendment rights are not presumed constitutional, this court should declare a statute unconstitutional only when absolutely necessary. State v. Hall , 887 N.W.2d 847, 852 (Minn. App. 2016), review denied (Minn. Feb. 22, 2017).

Facial challenge

The United States and Minnesota Constitutions protect the freedom of speech. U.S. Const. amend. I ; Minn. Const. art. I, § 3 ; State v. Wicklund , 589 N.W.2d 793, 801 (Minn. 1999) (interpreting the Minnesota Constitution’s free-speech provision as equivalent to the First Amendment to the U.S. Constitution). "A statute that implicates speech under the First Amendment must not be overly broad." Hall , 887 N.W.2d at 852. A statute is overbroad "if it prohibits or chills a substantial amount of protected speech along with unprotected speech." State v. Crawley , 819 N.W.2d 94, 102 (Minn. 2012).

To succeed in a facial overbreadth challenge, "the challenger must establish that a substantial number of [a statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." State v. Hensel , 901 N.W.2d 166, 170 (Minn. 2017) (quotation omitted). First, this court must determine whether First Amendment concerns are implicated. State v. Stockwell , 770 N.W.2d 533, 537 (Minn. App. 2009). If a statute implicates the First Amendment, this court must decide "whether it prohibits constitutionally protected activity in a substantial number of its applications." Hall , 887 N.W.2d at 852. "[B]ecause the overbreadth doctrine has the potential to void an entire statute, it should be applied only as a last resort." Stockwell , 770 N.W.2d at 538 (quotations omitted).

To convict A.J.B. under the stalking statute, the state had to prove beyond a reasonable doubt that he "repeatedly mail[ed] or deliver[ed] or cause[d] the delivery by any means, including electronically, of letters, telegrams, messages, [or] packages" which he knew or had reason to know "would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and cause[d] this reaction on the part of the victim regardless of the relationship between the actor and victim." See Minn. Stat. § 609.749, subds. 1, 2(6) (2014). To convict A.J.B. of harassment, the state had to prove that he, "with the intent to abuse, disturb, or cause distress, repeatedly mail[ed] or deliver[ed] or cause[d] the delivery by any means, including electronically, of letters, telegrams, or packages." See Minn. Stat. § 609.795, subd. 1(3).

Implicates First Amendment

The state does not contest that both statutes implicate the First Amendment. In Hall , this court held that a different subdivision of the stalking statute relating to repeated phone calls and text messages implicated the First Amendment because phone calls and text messages "typically contain some expressive activity, whether words or a picture." 887 N.W.2d at 853. In Stockwell , this court held that Minn. Stat. § 609.749, subd. 2(a)(2) (2006)—the stalking statute—implicated the First Amendment as well, despite its focus on particular forms of harassing conduct, because that statute could have impacted expressive conduct. 770 N.W.2d at 538. Here, although the statutes focus on particular forms of stalking or harassing conduct, the conduct criminalized by those statutes involves sending letters, telegrams, messages, or packages, each of which typically involves some expressive activity. Because the statutes in this case may implicate expressive activity, we conclude that they implicate the First Amendment.

Prohibits protected speech

A.J.B. argues that the stalking and harassment statutes prohibit a substantial amount of protected speech, relying primarily on Hensel and State v. Machholz , 574 N.W.2d 415 (Minn. 1998). We are not persuaded. In Hensel , the supreme court held that Minn. Stat. § 609.72, subd. 1(2) (2016), the disorderly conduct statute, was substantially overbroad on its face. 901 N.W.2d at 170, 175. The supreme court read that statute as prohibiting "any activity, whether expressive or not, that interferes with or destroys the tranquility of any lawful gathering of people ... so long as the individual knows, or has reason to know, that the activity will, or will tend to, disturb others." Id. at 172 (quotations omitted). The supreme court noted the "alarming breadth" of the statute, which criminalized protected speech such as criticizing political groups, wearing clothes bearing offensive inscriptions, and burning the American flag on a public street. Id. (quotation omitted).

In Machholz , the supreme court held that Minn. Stat. § 609.749, subd. 2(7) (1996), which criminalized "harassing conduct that interferes with another person or intrudes on the person’s privacy or liberty," was substantially overbroad on its face. 574 N.W.2d at 418, 421. The supreme court noted that statute’s language "swe[pt] in a whole spectrum of constitutionally protected activity." Id. at 420.

In Hall , this court distinguished subdivision 2(4) of the stalking statute from the catchall provision in Machholz , reasoning that, unlike the catchall provision that "encompassed any and all harassing conduct, subdivision 2(4) is narrower." 887 N.W.2d at 855. This court also noted that subdivision 2(4) focused only on repeated conduct which the caller knew or had reason to know would cause the victim to feel frightened, oppressed, or intimidated. Id. In Stockwell , this court distinguished Machholz as well, noting that, unlike the catchall harassment language in Machholz , the statute before the court was limited to the specific conduct of "stalking, following, monitoring, or pursuing." 770 N.W.2d at 539.

The subdivisions of the stalking and harassment sta...