State v. Franks, No. A06-1242.

• Decision Date: 14 May 2009
• Docket Number: No. A06-1242.
• Citation: 765 N.W.2d 68
• Parties: STATE of Minnesota, Respondent, v. Christian N. FRANKS, Appellant.
• Court: Minnesota Supreme Court

765 N.W.2d 68

STATE of Minnesota, Respondent, v. Christian N. FRANKS, Appellant.

No. A06-1242.

Supreme Court of Minnesota.

May 14, 2009.

Lawrence Hammerling, Chief State Appellate Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, St. Paul, MN, for appellant.

Lori Swanson, Minnesota Attorney General, St. Paul, MN; and Mark A. Ostrem, Olmsted County Attorney, Kathy W. Wallace, Assistant Olmsted County Attorney, Rochester, MN, for respondent.

OPINION

GILDEA, Justice.

In this appeal we consider whether the evidence was sufficient to sustain appellant Christian N. Franks' conviction for engaging in a pattern of harassing conduct and whether the district court erred in sentencing. Franks was tried and convicted of four counts of violation of an order for protection, Minn.Stat. § 518B.01, subd. 14(d) (2008), and one count of pattern of harassing conduct, Minn.Stat. § 609.749, subd. 5 (2008). Franks' convictions arise from a series of letters he wrote to his estranged wife, their two children, his in-laws, and his wife's friend. The district court sentenced Franks to 51 months and 3 days in prison, reflecting consecutive sentences for each order for protection violation, but declined to sentence Franks for the pattern of harassing conduct. The court of appeals affirmed. We granted Franks' petition for further review.

Franks raises three issues on appeal. First, Franks challenges his conviction for engaging in a pattern of harassing conduct, arguing that the evidence presented at trial was insufficient as a matter of law to support the guilty verdict. Second, Franks challenges the district court's decision to sentence him on the four order for protection violations, rather than on the more serious crime of engaging in a pattern of harassing conduct. Third, Franks argues that the district court erred in sentencing him consecutively rather than concurrently, arguing that consecutive sentences violate Minnesota's sentencing guidelines and unduly exaggerate the criminality of his conduct. Because we conclude that the evidence was sufficient, but that the district court erred in sentencing, we affirm in part, reverse in part, and remand for resentencing consistent with this opinion.

The record reflects that Franks met J.R. in 1996. Franks and J.R. had two children together: A.F., born in 1996, and B.F., born in 2001. The couple married in 2002. In January 2003, J.R. and Franks separated; the marriage was dissolved in 2004.

Shortly after the couple's separation, in early February 2003, Franks broke into J.R.'s house. Franks threatened to kill J.R. and himself, and dragged J.R. around the house searching for a shotgun. As a result of this incident, J.R. obtained an order for protection against Franks on February 10, 2003. The order stated that Franks "shall have no contact, either direct or indirect, with [J.R.] or the children, whether in person, with or through other persons, by telephone, letter, or in any other way" except by court-supervised visitation. Franks was present at the order for protection hearing.

Just two days later, on February 12, 2003, Franks used a crowbar to pry open J.R.'s basement window in the early morning hours. Franks entered J.R.'s home, and sexually assaulted her. Franks was prosecuted and convicted of terroristic threats, Minn.Stat. § 609.713, subd. 1 (2008), burglary in the first degree, Minn. Stat. § 609.582, subd. 1(c) (2008), and criminal sexual conduct in the third degree, Minn.Stat. § 609.344, subd. 1(c) (2008). The district court sentenced Franks to 78 months in prison.

In January 2004, J.R. sought and received an extension on her order for protection against Franks through February 10, 2005. Franks received a copy of the second order for protection. The terms of the new order were identical to those contained in the original order for protection.

While serving his prison term for terroristic threats, burglary, and criminal sexual conduct, Franks wrote a series of letters to the children, J.R., J.R.'s parents, and to one of J.R.'s friends. On March 5, 2004, and June 18, 2004, Franks addressed letters to his two young children, A.F., approximately age 8, and B.F., approximately age 3. The letters discussed a wide range of topics, including hockey, swimming, A.F. and B.F.'s relatives, and video games. The March 5 letter also included a request for A.F. and B.F. to visit Franks in prison. Franks wrote: "I wish I could see you guys. You boys are allowed to come see me in prison. You have to ask your mom if you can come see me. She's the only one stopping you from visiting me." In Franks' June 18 letter to A.F. and B.F., Franks renewed his plea for his sons to visit him in prison, writing: "Your mom has to sign a simple consent form without all the stupid stipulations. Ive [sic] lived up to all my obligations now its [sic] your moms [sic] turn to live up to hers."

On June 27, 2004, and July 7, 2004, Franks sent two letters to J.R.'s friend. Both letters covered a variety of topics, including Franks' life in prison, mutual friends, J.R., and the children. Franks further said: "Im [sic] getting really muscular," "By the time I get out I will be really big," and "Ill [sic] be out soon 3 more years isn't very long." In the June 27 letter, Franks described his past sexual relations with three of J.R.'s friends. Franks also wrote: "I dont [sic] care if you tell [J.R.] about her friends...." Franks' July 7 letter to J.R.'s friend described Franks' and J.R.'s past sexual relations in detail. Franks also asked J.R.'s friend if she knew why J.R. "still hasn't signed the visitation papers so my children can come and see me." In that letter, he also said, "When I get out Im [sic] gonna work a sh—ty paying job so [J.R.] cant [sic] get a ton of money from me," "she'll only get around 500 to 600 a month from me if she is lucky," "within[ ] a few years of my release Ill [sic] have custody of at least one of my boys," "[my] attorney is taking [J.R.] back to Court if she doesnt [sic] sign the [visitation] papers real soon," and "[J.R.] will be held in contempt of court."

Franks wrote two letters directly to J.R. around July 22, 2004, and August 2, 2004. Both letters discussed Franks' desire for A.F. and B.F. to visit him in prison. Franks wrote around July 22: "The judge ordered that you sign a permission slip for the boys to come and see me." And continued: "Do the right thing and sign the visitation papers as you were instructed to do...." Franks also said "Dont [sic] you think you've been playing a game with me plenty long?" "If you choose to let me sign my [parental] rights away. You will not be getting any type of child support from me. I know how important money is to you." Franks' August 2 letter similarly pleaded with J.R. to allow visitation. Franks wrote:

I just want you to know that I am not interested in you anymore and that I dont [sic] want any more contact with you than nessesarry [sic]. But what I do know is that we have two children together so at some point we are going to have to deal with each other in an adult manor [sic] so we can properly raise our children. I am not planning on badgering the children to get information about you. To be honest I don't care the least but [sic] what your [sic] doing. The only thing that I know for shure [sic] is I love those boys more than life itself. And I dont [sic] want anything more in this world than to see those boys on a regular basis. Those boys need to see their father. Regardless of what you think.

Franks added that: "I just talked to both the boys on Sunday and they told me they loved and miss me very much and the[y] wanted to see me bad. I keep telling them it should be soon."¹

At some point while in prison (the record does not reflect the precise date), Franks also sent a letter to J.R.'s parents. In the letter, Franks apologized to J.R.'s parents for his behavior and asked them to convince J.R. to allow A.F. and B.F. to visit Franks in prison. Franks wrote: "Please try to talk to [J.R.] and make her understand that her grudge against me is hurting the children."

At trial, J.R.'s friend and J.R.'s mother both testified that they shared the letters they received with J.R. Both J.R.'s friend and J.R.'s mother further testified that they believed Franks wrote the letters to them to communicate with J.R. "in a roundabout way."

J.R. testified that she was "disgusted" by the June 27 letter to her friend, and stated generally: "It makes me fearful that he still continues to try and contact me one way or another." At a different point in J.R.'s testimony, the State asked J.R., "when [Franks] contacted you, how did you feel?" J.R. said: "I didn't like it. And I'm very scared of him." In addition, a police officer whom J.R. contacted after receiving the letters testified, without objection, that J.R. told the officer that she (J.R.) felt "afraid" when she received the letters.

The State charged Franks with four counts of violation of an order for protection under Minn.Stat. § 518.01, subd. 14(d), and one count of committing a pattern of harassing conduct in violation of Minn.Stat. § 609.749, subd. 5 (2006). The matter proceeded to trial, and Franks waived his right to a trial by jury. The district court judge found Franks guilty on all charges. In its order, the court found that each of the two letters written to the children (March 4 and June 18) and each of the two letters written to J.R. (July 22 and August 2) supported one violation of the order for protection. The court also found that the letters Franks sent to J.R., her friend, and her parents, together constituted a pattern of harassing conduct, in violation of Minn.Stat. § 609.749, subd. 5.

Following the State's recommendation, the district court sentenced Franks to 51 months and 3 days in prison, to be served consecutively to Franks' existing prison term. The total sentence represented four consecutive sentences—one for each order for protection...